BRICKELL, C. J.
The court made an order setting the day of trial, and that, with the persons drawn and summoned as petit jurors for the week, other names should be drawn so as to increase the number to seventy-five, a list of whom were to be served on the defendant. This course was pursued; and on the day of trial, in *140the process of the organization of the jury, the court was inquiring into and passing upon the qualifications of the persons appearing in obedience to' the summons to serve as jurors. The name of Theodore Lacy was called, who was one of the regular jurors of the week. He responded, but said that -though summoned by the name of Theodore, his true name was Theophilus Lacy. Thereupon, ex mero motu,th.e court excused or discharged him from service as a juror, to which the defendant excepted .
1. The special statute in relation to the drawing and empannelling of grand and petit jurors in the county of Dallas, requires that whenever any person stands indicted for a capital felony, the court must, on the first day of the term, or as soon thereafter as practicable, make an order conforming to section 4874 of the Code of 1876, commanding the sheriff to summon not less than fifty nor more than one hundred persons, including those summoned on the-regular juries for the week, from whom the panel for the trial is to be selected. Upon the court, on the day set for the trial, if the cause is ready for trial, is imposed the duty of inquiring into and passing "upon the qualifications of all persons who appear in court in response to the summons to serve as jurors;” and to cause the names of all those whom the court may hold to be competent jurors to try the defendant, to be placed on lists, and to require the defendant to strike - off from the lists two names, and the solicitor to strike off one, and this process is continued until only twelve names remain, who are to be sworn and empannelled as the jury.- It. is further provided, that, "If the sheriff fails to summon any juror drawn, or any juror summoned fails or refuses to attend the trial, or there is any mistake in the name of any j uror drawn or summoned, none or all of these grounds shall be- sufficient to quash the venire, or continue the case.” — Pamph. Acts, 1884-85, p. 497.
It is obvious the power the court is authorized to exercise in the process of the organization of the jury, is the inquiry into and determination of the qualifications as a juror of the person appearing in obedience to the summons. It may doubtless reject any or all who may be subject to any disqualification, or who may not have the statutory qualifications. So, it may probably, ex*141cuse or discharge auy person because of reasons personal to himself, which would render service as a juror oppressive. Beyond this, it is not contemplated by the statute, the power which the court may exercise ex mero motu shall extend. If there be not an absence of the statutory qualifications, or a temporary disqualification, or reasons personal, rendering service as a juror oppressive, the duty of the court is to cause the names of all appearing to be placed on the lists from which the jury is to be selected. A list of all who are to be summoned to appear, the law requires to be served on the defendant. The object is, to enable him to prepare for his challenges'; to afford him the opportunity of ascertaining whether causes for challenge exist; to exercise intelligently the right of peremptory challenge, and the power of selection, which the statute confers. — Parsons v. State, 22 Ala. 50" court="Ala." date_filed="1853-01-15" href="https://app.midpage.ai/document/parsons-v-state-6504979?utm_source=webapp" opinion_id="6504979">22 Ala. 50. There should not be interference with this right further than the statute sanctions. The juror was not incompetent; there was no disqualification; no request to be .excused because service would be oppressive. The only reason for his discharge was the misnomer of his christian.name ; a misnomer not affecting his identity, for by it he had been summoned, and to it he responded. An. error which, by the express terms of the statute, is immaterial; not ground for quashing the venire, or a continuance of the cause. The court erred in the discharge of the juror. The error, it maybe, was not of practical injury to the defendant. We deem it safer, however, to adhere to the long settled rule, that when error is shown, the presumption of injury arises, which must be clearly repelled by the record, or the judgment will be -reversed. — 1 Brick. Dig. 780, § 100.
2. After the deceased had received the fatal stab, and after he had given up all hope of recovery, he made statements conceiming the encounter, which were received in evidence against the objection of the defendant. Such statements — dying declarations — are exceptional testimony, and are received from the necessity of the case; the circumstance's and the solemn surroundings being treated as supplying the sanction and restraining force over the declarant, which a solemn oath imposes in ordinary cases. But the declarant does xiot become a general witness. He can only speak of the *142transaction, which, causes the death, and such accompanying acts, statements and conduct, as shed light on it; the res gestae, in a strict sense. Anything previously done or said, unless called up and made part of the altercation, can not be proven as a dying declaration ; and when so called up, it can be proved as such, only to the extent it is repeated or uttered in the altercation. It does not legalize any statement by the declarant of the past transaction out of which the difficulty grew. It is only such acts or statement, done or uttered at the time of the final, fatal encounter and catastrophe, and which tend to shed light on it as a part of the res gestae, which can be so proved. — Fonville v. State, 91 Ala. 39" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/fonville-v-state-6514072?utm_source=webapp" opinion_id="6514072">91 Ala. 39; Bibb v. State, 94 Ala. 31" court="Ala." date_filed="1891-11-15" href="https://app.midpage.ai/document/bibb-v-state-6514491?utm_source=webapp" opinion_id="6514491">94 Ala. 31; L. & N. R. R. Co. v. Pearson, 97 Ala. 211" court="Ala." date_filed="1892-07-01" href="https://app.midpage.ai/document/louisville--nashville-railroad-v-pearson-6514922?utm_source=webapp" opinion_id="6514922">97 Ala. 211; Johnson v. State, ante, p. 1.
Just before Emmerson, the deceased, expired, when he was conscious he was dying, and so expressed himself, he made two declarations, which were offered in evidence as dying declarations. Each was separately objected to, each objection was overruled, the testimony was admitted, and a separate exception was reserved to each ruling. One of the declarations was, “Jim Sullivan cut me — he cut me for nothing — I never did anything to him.” The objections made to this testimony were, that it was the conclusion of the declarant — the opinion of the deceased — and that it did not relate to the circumstances or transaction of the killing. There is nothing in this objection. The statement certainly did relate to the act, or transaction of the killing. The killing was effected by means of an incised wound. All the witnesses concur in that. He also said Sullivan cut him for nothing, and that he, the declarant, did nothing to Sullivan. True, this statement was very general, but it was admissible as a collective fact. — 3 Brick. Dig. 437, §§458,460,463, 465. The other part of the declaration was simply a continuation 'of the former : ‘ T pray God to forgive him.” This should have been excluded. It did not, in any way, relate to, or shed any light on the act of killing, or that which apparently led to - it.
3. It may be, charges numbered 1 and 18, requested by the defendant, find support in charges which were pronounced correct in DeArman’s Case, 71 Ala. 351" court="Ala." date_filed="1882-12-15" href="https://app.midpage.ai/document/dearman-v-state-6511390?utm_source=webapp" opinion_id="6511390">71 Ala. 351. We are nevertheless constrained, in view of the more recent rulings of this court, to declare that the city court prop*143erly refused to give them in the form in which they were requested. When an assault is made on a sudden quarrel, and a mutual combat ensues, retreat, if possible, to avoid the threatened danger, is a duty. For, as was said in Commonwealth v. Drum, 58 Penn. St. 1: “When it comes to a question whether one man shall flee or another shall live, the law decides that the former shall flee rather than the latter shall die.” — Eiland v. State, 52 Ala. 332; Pierson v. State, 12 Ala. 149" court="Ala." date_filed="1847-06-15" href="https://app.midpage.ai/document/pierson-v-state-6503378?utm_source=webapp" opinion_id="6503378">12 Ala. 149. There may be cases of murderous assault, or of assault with intent to commit other atrocious felonies, from which it is not the duty of him who is assailed to retreat, or employ any other effort to avoid taking life. But in all cases of sudden combat, to establish excusable homicide in self-defense, it must appear that the party killing had retreated; had made real effort to avoid the necessity of taking life. Any instruction to the j ury in such case, though it may assert every other fact essential to constitute homicide in self-defense, which does not necessitate the inquiry whether retreat, or other effort to avoid the taking of life, was practicable, is properly refused.— Holmes v. State, 100 Ala. 80" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/holmes-v-state-6515314?utm_source=webapp" opinion_id="6515314">100 Ala. 80; Webb v. State, 100 Ala. 47" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/webb-v-state-6515304?utm_source=webapp" opinion_id="6515304">100 Ala. 47; Gibson v. State, 89 Ala. 121" court="Ala." date_filed="1889-11-15" href="https://app.midpage.ai/document/gibson-v-state-6513800?utm_source=webapp" opinion_id="6513800">89 Ala. 121; Cleveland v. State, 86 Ala. 1" court="Ala." date_filed="1888-12-15" href="https://app.midpage.ai/document/cleveland-v-state-6513314?utm_source=webapp" opinion_id="6513314">86 Ala. 1. For the like reason, charge number 3 was properly refused.
Charge 6 should have been given. Charges 13 and 16 were rightly refused. The hypothesis of neither of them is a universal truism. Cases falling within each of the postulates might be murder, for there may have been formed design, and the homicide may have resulted from that formed design. If it did, according to their language, no matter how deadly the weapon, nor.' how directly aimed at Emmerson, yet unless the killing was intentional, the crime could not be of higher grade than manslaughter. In other words, no matter how deadly the blow, or how likelyto produce death, yet, unless the jury find there was a specific intention to kill, the homicide is only manslaughter. Manslaughter is the unlawful killing of a human being without malice. Every one must be held to intend the known consequences of an intentional act. When life is taken by the direct use of a deadly weapon, if there be nothing else in the transaction — no justifying or explanatory circumstances— the presumption is that the killing was done pursuant *144to a formed design. Malice may be inferred from the use of an instrument known to be liable to produce death.— 3 Brick. Dig., 216, § 524; Hadley v. State, 55 Ala. 31" court="Ala." date_filed="1876-12-15" href="https://app.midpage.ai/document/hadley-v-state-6509339?utm_source=webapp" opinion_id="6509339">55 Ala. 31.
Reversed and remanded.
Haralson, J., not sitting.