53 Ala. 486 | Ala. | 1875
We feel constrained to reverse the judgment in this case, because of the imperfect form in which the oath to the jury was administered. When the statute, Revised Code, section 4092, gives the form of an oath that is sufficient in all cases, it is matter of regret that it should be so often overlooked, or departed from. We do not assert that no other foi'm will do. Nor do we assert that the oath must be set out in totidem verbis. It is enough if the record show that the jurors were duly sworn.
When, however, the record assumes or purports to set out the oath that was administered to the jury, it must contain the substance of the oath as required by the statute. See Johnson v. State, 47 Ala. 9; Same v. Same, Ib. 62; McNeil v. State, Ib. 498 ; State v. Pile, 5 Ala. 72 ; Gardner v. State, 48 Ala. 263. But see Moore v. State, 52 Ala. 424.
We do not think the declarations of the deceased, as to what she ate for breakfast, or when she became sick, were px’oper res gestee declarations. They might have been received as the basis of a medical opinion, but as independent facts they were inadmissible. Of course, our decision is confined to the, presentation of the question as shown in this record. See Phillips v. Kelly, on page 633, 29 Ala.; Brock v. State, 26 Ala. 104; 1 Phil. Ev., Cowen & Hill’s & Edwards’ notes, 182; 1 Greenl. Ev. § 102; Johnson v. State, 17 Ala. 618; Liles v. State, 30 Ala. 24.
Judgment of circuit court reversed,. and cause remanded. Let the prisoner remaixx in custody until discharged by due course of law.
