Hanners v. State
41 So. 973
Ala.
1906
Check Treatment
TYSON, J.

In support of the motion to quash the special venire drawn for the trial of the case, it appears, by the agreed statement of facts, that at a former term of the court, on motion of the defendant, the special venire drawn for the trial of his case was quashed because *33of the illegality in the preparation of the box by the jury commissioners containing the names from which juries are required to be drawn, and properly so. — § 4982, -ode 1896. Tt is also made to appear, that the jury commissioners subsequently prepared another box in all respects, as required by the statutes, and it was from this box containing the names of the qualified jurors that the special venire was drawn to which the objection here urged was taken. There in no merit in it. — West v. State, 118 Ala. 100, 24 South. 48. The conversation had between defendant, Orr, and Worthey, which the testimony on the part of the state tends to establish, just immediately before the difficulty took place, in which the killing occurred, under tin* circumstances shown by the testimony, were clearly competent. If believed by the jury they tended to illustrate the subsequent conduct of defendant, and to give meaning and point to it, and also tended to show a conspiracy between those parties to do grevious bodily harm to or to take the life of the deceased. — Smith v. State, 136 Ala. 1, 34 South. 168; Bonner v. State, 107 Ala. 97, 18 South. 226.

It may be conceded for the purpose of this case that the threats by Worthey against the deceased, indulged in long before the fatal encounter, if made, were not competent for any purpose other than to show his hostility to the prosecution .and his bias for the defendant. And it may he further conceded that they would have been inadmissible unless Worthey had testified as a witness for defendant. But this he. did. In his testimony, he not only denied making the threats, but testified that he and deceased were on friendly relations frith each other. They were clearly competent for the purposes indicatd above. — Haralson v. State, 82 Ala. 47, 2 South. 765; People v. Brooks, (N. Y.) 30 N. E. 189, and cases there cited. Nor was it of consequence that this testimony may have been incompetent at the time it was offered, if it was subsequently rendered so, as was done.— Ray v. State, 126 Ala. 9, 28 South. 634. If the defendant perceived that this evidence should have been limited in its consideration by the jury to the purposes, for which we have said it was competent, he should have made a re*34quest of the court to that end. He had .no right to have it excluded. — Williams v. State, 81 Ala. 1, 1 South. 179, 60 Am. Rep. 133. In view of the remarks of defendant’s counsel in his speech to thé jury, we are unwilling to affirm that the remarks of the solicitor in reply thereto should have been excluded. It may be admitted that the. prosecution had the right to have the remarks of opposing counsel excluded (Crawford v. Slate, 112 Ala. 1, 21 South. 214), but this not beng done, the right to reply to them cannot be seriously doubted, upon the same principle often recognized by this court that illegal evidence may be rebutted by evidence of the same character. The court committed no error, therefore on this point. This brings us to a consideration of the charges refused to defendant. Charges 3 and 11 requested by him are each an argument, and, besides, were calculated to mislead the jury to the conclusion that be had the right, as a matter of law, to repudiate the accusation made by the deceased in such language as was calculated to provoke or encourage the difficulty which ensued between them. Furthermore, there was evidence from which- the jury may have inferred that his reply w.as for the purpose of bringing on the difficulty which had been preconceived ami planned. Charges 4 and 5 clearly invade the province of the jury. Whether there was a conspiracy between defendant and Worthey or between defendant, Worthey, and Orr, was -a question of fact, under the testimony, for the determination of the jury. Charge 6 sought to have the jury to- exclude from their consideration a part of the testimony and was, therefore, bad. Charge 10' pretermits Vll consideration of defendant’s freedom from fault in producing the necessity to take the life of the deceased as well as his duty to retreat. In view of (.he-tendency of the evidence showing a conspiracy between defendant and Worthey, charge 12 was properly refused, as being calculated to mislead the jury. Charge 21 is subject to the same vice as charge 10. It is wholly unlike the one approved in Kennedy v. State, 140 Ala. 1, 37 South. 90, as null readily appear by a comparison with it, and with what was there said with respect to that charge.

*35There was no error shown by the record, and the judgment must be affirmed.

Affirmed.

Weakijsy, C. L, and Simpson and Anderson, JJ., concur.