SOMERVILLE, J.
The'record in this case fails to show that the defendant was personally present in court when a day was fixed for his trial, and the order was made for summoning the special venire. It is insisted by appellant’s counsel that. this defect is a reversible error. The same point was .raised in Hall v. The State, 40 Ala. 698, and was there left undecided,, the court, however, expressing the opinion with emphasis,, “that it is the safer and better course to have the prisoner in court when such orders are made, and that the record should so affirm.” In the case of Spicer v. The State, 69 Ala. 159, we held, that, in every capital felony, the record must affirmatively show that the court appoio%ted a day for the trial of the prisoner, and that the making of such order can not be presumed from the mere silence of the record; nor would the necessity for it be waived by the fact that the prisoner proceeded to trial without objection. It is certainly the undoubted right of every defendant to be present at each stage of a criminal procedure by which his liberty may be affected, or his life be put in jeopardy. And the settled rule seems to be, especially in capital [24]*24cases, that the record must affirmatively show such presence, in the absence of which it would be unsafe for the appellate court to presume it.—1 Bish. Cr. Procedure, § 1180. There are few, if any preliminary proceedings, prior to the verdict, of more importance in criminal trials than legislative details securing the right to have a fair and impartial jury. Of these the most vital, in many cases, often is the order appointing a day for trial and fixing the number of jurors to be summoned. Such an order should never' be made in the absence of a defendant, and we must not presume he was present when the record omits to show the fact by positive affirmation. ¥e believe it to be the sounder rule, and the one more in harmony with the past decisions of this court on similar questions, that the defect presented for our consideration is a reversible error, and that the failure of the prisoner to object was no waiver.—Spicer v. The State, supra ; 1 Bish. Or. Proc. § 271. The distinction between the principle settled here and that in Pcw'ii case (36 Ala. 232) is fully pointed out in Spicer v. The State, supra, and nothing need be added on that point. The two decisions are in perfect harmony.
Without deciding it to be error to excuse a juror from service before a capital felony is regularly called for trial, when he is shown to be exempt by statute, we are of opinion, that the safer practice is not to excuse any juror in advance of the trial until he claims the privilege of such exemption on his name being regularly drawn.—Parsons v. The State, 22 Ala. 50.
There was no error in sustaining the objection of the solicitor to the questions propounded to the witness Cain. It was totally immaterial as to whether or not any charge had been made against the defendant upon the occasion of the coroner’s inquest touching the present homicide. It does not appear that any of the State witnesses had testified before the coroner, and the questions propounded could have no pertinency except for the purpose of impeachment in such event. The guilt or innocence of the prisoner can in no manner be affected by ex parte statements made in his absence, whether they be inculpa-tory or exculpatory.
For like reason the written statement of the witness Finnegan, taken at- the coroner’s inquest, was properly excluded, especially in view of the fact that the witness was not shown to be deceased.—Dupree v. Ths State, 33 Ala. 380.
The court properly excluded the testimony of the witness Scott Smith, which was offered by the defendant. He was shown to have been duly convicted of the offense of petit larceny, and this fact operated to entirely disqualify him from testifying in a court of justice. ’ At common law, persons convicted of crimes which rendered them infamous were excluded [25]*25from being witnesses. An infamous crime was regarded as comprehending treason, 'felony, and crimen falsi, and, in the absence of existing statutory provisions, the common law rule is now the law of this State.—Taylor v. The State, 62 Ala. 164. We are of opinion that a conviction of petit larceny at common law rendered a witness infamous. Grand and petit larceny, according to the better opinion, were both felonies at common law.—Bish. Cr. L. § 974; 1 Hale, P. C. c. 43, p. 503. Lord CoKB says that one convicted of petit larceny might be placed in the public pillory within the discretion of the judges, and this was a punishment attached to infamous crimes.—3 Just. 218. It is the actual conviction and not the mere fact of guilt which disqualifies. So it is the nature of the crime, and not the magnitude of the punishment, which constitutes a blemish on the moral character, and thereby incapacitates to testify by rendering infamous. The test seems to be, “whether the crime shows such depravity in the perpetrator, or such a disposition to pervert public justice in the courts, as creates a violent presumption against his truthfulness under oath.” 1 Bish. Cr. L. § 974 Upon reason and authority alike, we think the witness was incompetent, and such seems to be the uniform holding of the courts both in England and America. — 1 Whart. Ev. § 397, note: Pendock v. Mackinder, "Willes (Com. Pleas), Rep. 665; Lyford v. Farrar, 31 N. H. (11 Fost.), 314; State v. Gardner, 1 Root, 485. It was incompetent to prove what was said by the witness Sawyer to Finnegan in the presence of Lynch, the deceased. No admission of the deceased would be admissible in evidence against the State, except as part of the res gestos. It would be mere hearsay.
The questions put to Sawyer, touching his previous expressions of opinion when summoned as a juror in the case, were manifestly proper on cross-examination, as they served to test his bias or prejudices which had a tendency to color his testimony.
The charge given by the court, of its own motion, was correct. If the fatal wound was inflicted with a deadly weapon, this would be a fact from which the existence of malice could be inferred on the part of the perpetrator, and the character of the weapon used, whether deadly or otherwise, is in most cases a question for the jury, to be determined from its description by witnesses, the nature of the wound inflicted with it, the opinion of experts, and other circumstances in evidence.
The written charges numbered 20, 21 and 22, which were requested by the defendant, were properly refused. They entirely exclude from the jury the important consideration that the deceased was an officer of the law, and was killed while in the act of making a lawful arrest, and erroneously assume that [26]*26the killing was perpetrated in a mutual encounter between combatants fighting on equal terms. They further falsely assume as a truism, that an ordinary pocket-knife, capable in its use of producing death, may not be a deadly weapon.
The fifth charge was also properly refused. Dying declarations are not admissible in evidence merely on the ground that they are not wilfully or intentionally false. They are admitted rather from the necessity of the case, in order to bring man-slayers to justice, and because, being uttered under a sense of impending death, the solemnity of the occasion is tantamount to the saféguard of an oath.
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SOMERVILLE, J.
The'record in this case fails to show that the defendant was personally present in court when a day was fixed for his trial, and the order was made for summoning the special venire. It is insisted by appellant’s counsel that. this defect is a reversible error. The same point was .raised in Hall v. The State, 40 Ala. 698, and was there left undecided,, the court, however, expressing the opinion with emphasis,, “that it is the safer and better course to have the prisoner in court when such orders are made, and that the record should so affirm.” In the case of Spicer v. The State, 69 Ala. 159, we held, that, in every capital felony, the record must affirmatively show that the court appoio%ted a day for the trial of the prisoner, and that the making of such order can not be presumed from the mere silence of the record; nor would the necessity for it be waived by the fact that the prisoner proceeded to trial without objection. It is certainly the undoubted right of every defendant to be present at each stage of a criminal procedure by which his liberty may be affected, or his life be put in jeopardy. And the settled rule seems to be, especially in capital [24]*24cases, that the record must affirmatively show such presence, in the absence of which it would be unsafe for the appellate court to presume it.—1 Bish. Cr. Procedure, § 1180. There are few, if any preliminary proceedings, prior to the verdict, of more importance in criminal trials than legislative details securing the right to have a fair and impartial jury. Of these the most vital, in many cases, often is the order appointing a day for trial and fixing the number of jurors to be summoned. Such an order should never' be made in the absence of a defendant, and we must not presume he was present when the record omits to show the fact by positive affirmation. ¥e believe it to be the sounder rule, and the one more in harmony with the past decisions of this court on similar questions, that the defect presented for our consideration is a reversible error, and that the failure of the prisoner to object was no waiver.—Spicer v. The State, supra ; 1 Bish. Or. Proc. § 271. The distinction between the principle settled here and that in Pcw'ii case (36 Ala. 232) is fully pointed out in Spicer v. The State, supra, and nothing need be added on that point. The two decisions are in perfect harmony.
Without deciding it to be error to excuse a juror from service before a capital felony is regularly called for trial, when he is shown to be exempt by statute, we are of opinion, that the safer practice is not to excuse any juror in advance of the trial until he claims the privilege of such exemption on his name being regularly drawn.—Parsons v. The State, 22 Ala. 50.
There was no error in sustaining the objection of the solicitor to the questions propounded to the witness Cain. It was totally immaterial as to whether or not any charge had been made against the defendant upon the occasion of the coroner’s inquest touching the present homicide. It does not appear that any of the State witnesses had testified before the coroner, and the questions propounded could have no pertinency except for the purpose of impeachment in such event. The guilt or innocence of the prisoner can in no manner be affected by ex parte statements made in his absence, whether they be inculpa-tory or exculpatory.
For like reason the written statement of the witness Finnegan, taken at- the coroner’s inquest, was properly excluded, especially in view of the fact that the witness was not shown to be deceased.—Dupree v. Ths State, 33 Ala. 380.
The court properly excluded the testimony of the witness Scott Smith, which was offered by the defendant. He was shown to have been duly convicted of the offense of petit larceny, and this fact operated to entirely disqualify him from testifying in a court of justice. ’ At common law, persons convicted of crimes which rendered them infamous were excluded [25]*25from being witnesses. An infamous crime was regarded as comprehending treason, 'felony, and crimen falsi, and, in the absence of existing statutory provisions, the common law rule is now the law of this State.—Taylor v. The State, 62 Ala. 164. We are of opinion that a conviction of petit larceny at common law rendered a witness infamous. Grand and petit larceny, according to the better opinion, were both felonies at common law.—Bish. Cr. L. § 974; 1 Hale, P. C. c. 43, p. 503. Lord CoKB says that one convicted of petit larceny might be placed in the public pillory within the discretion of the judges, and this was a punishment attached to infamous crimes.—3 Just. 218. It is the actual conviction and not the mere fact of guilt which disqualifies. So it is the nature of the crime, and not the magnitude of the punishment, which constitutes a blemish on the moral character, and thereby incapacitates to testify by rendering infamous. The test seems to be, “whether the crime shows such depravity in the perpetrator, or such a disposition to pervert public justice in the courts, as creates a violent presumption against his truthfulness under oath.” 1 Bish. Cr. L. § 974 Upon reason and authority alike, we think the witness was incompetent, and such seems to be the uniform holding of the courts both in England and America. — 1 Whart. Ev. § 397, note: Pendock v. Mackinder, "Willes (Com. Pleas), Rep. 665; Lyford v. Farrar, 31 N. H. (11 Fost.), 314; State v. Gardner, 1 Root, 485. It was incompetent to prove what was said by the witness Sawyer to Finnegan in the presence of Lynch, the deceased. No admission of the deceased would be admissible in evidence against the State, except as part of the res gestos. It would be mere hearsay.
The questions put to Sawyer, touching his previous expressions of opinion when summoned as a juror in the case, were manifestly proper on cross-examination, as they served to test his bias or prejudices which had a tendency to color his testimony.
The charge given by the court, of its own motion, was correct. If the fatal wound was inflicted with a deadly weapon, this would be a fact from which the existence of malice could be inferred on the part of the perpetrator, and the character of the weapon used, whether deadly or otherwise, is in most cases a question for the jury, to be determined from its description by witnesses, the nature of the wound inflicted with it, the opinion of experts, and other circumstances in evidence.
The written charges numbered 20, 21 and 22, which were requested by the defendant, were properly refused. They entirely exclude from the jury the important consideration that the deceased was an officer of the law, and was killed while in the act of making a lawful arrest, and erroneously assume that [26]*26the killing was perpetrated in a mutual encounter between combatants fighting on equal terms. They further falsely assume as a truism, that an ordinary pocket-knife, capable in its use of producing death, may not be a deadly weapon.
The fifth charge was also properly refused. Dying declarations are not admissible in evidence merely on the ground that they are not wilfully or intentionally false. They are admitted rather from the necessity of the case, in order to bring man-slayers to justice, and because, being uttered under a sense of impending death, the solemnity of the occasion is tantamount to the saféguard of an oath.
If these declarations pointed to the identity of the defendant, as the perpetrator of tiro killing, with the same clearness and certainty as if the deceased had designated him by name, they were entitled to as much weight on the part of the jury as if defendant’s name had been expressly mentioned. ¥e understand the second charge, given on request of the solicitor, to only assert this view.
The third charge, given on request of the solicitor, was also unobjectionable. The flight of a defendant may or may not be considered as a circumstance tending to prove guilt, as this depends upon whether the motive of such flight had its origin in a consciousness of guilt, and a pending apprehension of being brought to justice; or whether, on the other hand, it can be explained as attributable to other and more innocent motives.
The first charge given at the instance of the solicitor was obscure and involved in meaning, and was not entirely free, perhaps, from the vice of being misleading. This, however, could have been corrected by requesting a'counter explanatory charge in behalf of the defendant.
There is nothing in the other exceptions to the evidence.
For the error in the record first mentioned, the judgment of the City Court must be reversed and the cause remanded for a new trial. In the meanwhile the prisoner will be held in custody until discharged by due course of law.