BRICKELL, C. J.
1. The oath administered to the jury was not, in substance, the oath prescribed by the statute ; and its administration is an error fatal to the judgment of conviction, under the authority of Lewis v. State, 51 Ala. 1" court="Ala." date_filed="1874-06-15" href="https://app.midpage.ai/document/lewis-v-state-6508764?utm_source=webapp" opinion_id="6508764">51 Ala. 1; Perkins v. State, at the present term.
2. The motion to quash the venire rests on the sole ground, that several of the persons summoned as special jurors were incompetent, because of the relation they sustained to the case. Some of them were witnesses on benalf of the State, and others were of the petit jury on a mistrial of the cause at a former term. There can be no doubt, these persons were not good and lawful jurors, and were subject to challenge for cause. The sheriff, in summoning them, having knowledge of the disqualification, as the bill of exceptions indicates, was grossly derelict in duty, and the Circuit Court should not have permitted the dereliction to pass unnoticed. The right of the State, and the right of the accused, is the summoning of persons free from disqualification as jurors, from whom a jury may be selected; and the sheriff should not be suffered, from mere caprice, or negligence, to narrow or diminish the right. The court, at the instance of the State, or of the accused, would have excluded these persons from the venire, and caused others, free from exception, to be summoned in their place. But we cannot regard the summoning of them as cause for quashing the venire, which, so far as we are informed, contained a sufficient number of good and lawful men without them, from *7whom a fair and impartial jury could be selected. — Hall v. State, 40 Ala. 698" court="Ala." date_filed="1867-06-15" href="https://app.midpage.ai/document/hall-v-state-6507334?utm_source=webapp" opinion_id="6507334">40 Ala. 698.
3. The fact of anticipated litigation between the deceased and the accused, or of litigation in which the accused felt an interest, connected with his declaration that he would kill any one who would sue him under like circumstances, was admissible, as bearing on the question of the relation of the parties and the state of the feelings of the accused towards" the deceased. The merits of the litigation was not.material. The right may have been against the deceased, but this would not change the fact, that the relation of the parties was hostile. Any evidence touching the merits would have multiplied indefinitely the issues before the jury, and would have served no other purpose than to distract and divert their attention from the real issues they were to try. The Circuit Court did not, therefore, err in excluding the deed from Broome to Swann.
4. We have carefully examined the charge of the court; and it seems to us free from error. It is in harmony with our several decisions. — Murphy v. State, 37 Ala. 142" court="Ala." date_filed="1861-01-15" href="https://app.midpage.ai/document/murphy-v-state-6506853?utm_source=webapp" opinion_id="6506853">37 Ala. 142; Eiland v. State, 52 Ala. 322" court="Ala." date_filed="1875-06-15" href="https://app.midpage.ai/document/eiland-v-state-6509017?utm_source=webapp" opinion_id="6509017">52 Ala. 322; Hadley et al. v. State, 55 Ala. 31.
For the error pointed out, the judgment must be reversed, and the cause remanded. The prisoner must remain in custody, until discharged by due course of law.