[Smith v. The State.] ecution, and several by the defendant, who testified as to the intemperate habits of John H. Wilson, the person to whom the liquor was sold, and who was himself examined as a witness on the part of the State. Among these witnesses, A. Abney, a witness for the State and a merchant in the town in which the defendant's place of business was situated, testified, that said Wilson had for several years done most of his business with the house of Abney & Co.; that he had frequently seen Wilson drunk on the streets in said town; that he was a man of "known intemperate habits;" "that he knew some other persons in and around Butler," the town in which the defendant's shop was situated, "who knew the fact of his intemperate habits, but he could not say that the defendant knew it; and that he had never heard said Wilson's character for intemperance discussed." "The defendant thereupon moved the court to exclude from the jury the statement of said witness, that said Wilson was a man of known intemperate habits; and he reserved an exception to the overruling of his motion by the court." Several other exceptions were reserved by the defendant to similar rulings of the court on questions of evidence, which require no particular notice. The court charged the jury, in writing, as follows: "Before the State can ask a verdict of guilty in this case, the solicitor must show, by satisfactory proof, that the defendant sold or give away spirituous liquors, to a person of known intemperate habits, within twelve months before the finding of this instrument, and that this was done in Choctaw county. When the solicitor has shown this by evidence, he has a right to ask a verdict of guilty, unless the defendant shows some good reason why he should be acquitted. (There are some facts which are admitted: that the witness Wilson bought spirituous liquors from the defendant, in this county, within twelve months before the finding of the indictment; and these facts are not disputed.) The State insists, that said Wilson was a man of known intemperate habits, and that the evidence shows the defendant must have known his character in the community in which he has lived for the past four years; and the defendant denies that said Wilson was a man of known intemperate habits. What are the facts? What is necessary to constitute a man of known intemperate habits? In Webster's Dictionary, intemperate habits are thus defined: 1. In a general sense: want of moderation or due restraint; excess in any kind of action or indulgence. 2. Habitual indulgence in drinking of spirituous liquors, with or without intoxication.' Worcester, another standard authority, says: "Intemperance is the excessive, [Smith v. The State.] immoderate indulgence in intoxicating liquors.' A habit is a tendency, or aptitude, for the performance of certain actions, acquired by custom, or a frequent repetition of the same act. Was said Wilson a man of intemperate habits? Does the evidence show that he frequently indulged immoderately, and to an excess, in drinking intoxicating liquors? If you believe that said Wilson was a man of intemperate habits, and that he bore that character in the community where he lived, and where the defendant lived, was that character known to the defendant, and does the evidence show that he must have known, or had good reason to believe, that said Wilson was a man of known intemperate habits, at the time he sold the liquor to said Wilson? If so, the defendant must be convicted. It is for the jury to say, from all the evidence, whether the defendant knew the character of said Wilson; and they may, in connection with the other facts in the case, look to the fact that others in the same community knew his character. The defendant insists, however, that the evidence is not sufficient to convince the jury, beyond a reasonable doubt, that he is guilty as charged in the indictment. What is a reasonable doubt? A doubt, which requires an acquittal, must be actual and substantial; not mere possibility, or speculation. It is that state of the case, which, after the entire consideration and comparison, leaves the minds of the jury in such condition that they cannot say they feel an abiding conviction to a moral certainty of the charge. The defendant insists, that he cannot be rightfully convicted, because he did not intend to violate the law. Ignorance of the law is no excuse; and if the defendant intended to sell the liquor, and knew, or had good reason to believe, that said Wilson was a man of known intemperate habits at that time, then he would be guilty, for the law presumes that every sane man intends the natural consequences of his own acts." The court further charged the jury, at the request of the solicitor, as follows: "While it is not a legal presumptionthat is, a presumption of law-it is a presumption of fact, that what is notorious in the neighborhood, is known to the defendant, if he lives in the neighborhood." To this charge, and to those parts of the affirmative charge, above copied, "which define habit, and the definition there given of a person of known intemperate habits," and to the words which are italicized, the defendant excepted; and he then requested several charges in writing, of which the court refused to give the following: 1. "The single habit of getting drunk, even separately, does not constitute intemperate habits." 2. "A person who gets drunk at intervals of several months, or not more than once or twice a year, is not a person of known in [Smith v. The State.] temperate habits." 3. "The mere fact that a man gets drunk occasionally, in the neighborhood in which the defendant resides, is only a circumstance going to show his knowledge of the fact, but is not conclusive.' 4. "A person who gets drunk occasionally, is not a person of known intemperate habits." 5. "If the jury believe, from the evidence, that Wilson's intemperate habits were notorious in the community in which he lives, yet, if such notoriety is not traced directly to the defendant, he is not guilty as charged." The overruling of the demurrer to the indictment, and the several rulings of the court to which exceptions were reserved on the trial, as above stated, are the matters now presented for revision. S. H. SPROTT, with GLOVER & TAYLOR, for defendant. JNO. W. A. SANFORD, Attorney-General, for the State. BRICKELL, C. J.-1. The only question presented by the demurrer to the indictment is the constitutionality of the act, approved March 18, 1875 (Pamph. Acts 1874-5, p. 280), entitled "An act to render more explicit and to provide for the better enforcement of the provisions of law, in reference to the sale or giving away of spirituous, vinous, or malt liquors in this State.' This question was fully considered in Adler v. State, at the present term, and the constitutionality of the act affirmed. 2. Indictments for misdemeanors, or for felonies which may not be punished capitally, are triable by the regular jurors summoned for the week, or for the term, if the term does not exceed one week. These jurors are organized by the court, on the day to which they are summoned, into separate pannels, and numbered jury one and two. They are sworn generally; not for the trial of a particular issue, but well and truly to try all issues, and execute all writs of inquiry, which may be submitted to them, and true verdicts to render according to the evidence. When a cause is called for trial, it is in the discretion of the court to cause either pannel to take the box; and the pannel called, on taking their seats, are subject to challenges. If the indictment is for a felony which may be punished capitally, special jurors are summoned, including the regular juries. From the special jurors summoned a jury is drawn and selected. As the name of each person so summoned is drawn, though he may be of the regular juries, he is examined by the court touching his qualifications, and to ascertain if he is subject to challenge for cause. If on such examination he is found of the requisite [Smith v. The State.] qualifications, and not subject to challenge for cause, he is put first on the State, and then on the defendant; and if accepted by each, he is sworn for the trial of the issue in the particular case. After having been accepted and sworn, he cannot, without the consent of the prisoner, be set aside, or challenged, for any cause existing at the time he was sworn, although such cause was not discovered until after he had been accepted and sworn.-State v. Williams, 3 Stew. 454; State v. Morea, 2 Ala. 275; Stalls v. State, 28 Ala. 25; McFadden v. Commonwealth, 23 Penn. 12. This rule cannot be applied to indictments for misdemeanors, or for felonies not capital, except as to talesmen; because the regular jurors of the week, or term, are not sworn for the trial of the particular case, but generally-for the trial of all issues which may be submitted to them; and the oath is administered before the State or the defendant has the opportunity of interposing a challenge. As to these jurors, the right of challenge for cause exists, until, by some positive act, the juror is selected by the State and the defendant. The mere calling of the juror to the bar, by the order of the court, and the challenge of other jurors called at the same time, without the acceptance or challenge of the particular juror-mere silence in regard to him-the parties not having been required to elect or reject him, is not an absolute waiver of the right to challenge, if good cause be subquently shown, and it is apparent such cause was not sooner discovered, or was not improperly withheld. Talesmen, when summoned and drawn to supply deficiencies in such juries, are put on the State and the defendant, for acceptance and rejection, as they are drawn, and are not sworn until after their acceptance; or, if the right of peremptory challenge has been exhausted, until an opportunity is afforded for challenge for cause. The challenge of talesmen, for existing cause, must precede the administration of the oath. After the ceremony of the administration of the oath is commenced, the right of challenge for existing cause is lost, alike to the State and to the defendant. We In Stalls v. State (25 Ala. 25), it was held, that the State lost the right of challenge for cause, if the talesman had been accepted, though the cause of challenge was discovered after acceptance, and interposed before he was sworn. are not inclined to follow this ruling. If the court is satisfied that the cause of challenge was discovered after the acceptance of the juror, and before he is sworn-that it has not been withheld from mere caprice, or from some improper motive, the challenge should not be disallowed. The right of the State, and of the defendant, is to a fair trial, by an [Smith v. The State.] honest, impartial, intelligent jury. The defendant does not acquire a right, by the acceptance of a juror who is subject to challenge for cause, to be tried by him. The State does not lose the right to interpose the challenge, so long as the juror is not sworn. Until then, the matter of his selection and qualification is not complete. It is the administration of the oath which qualifies him, and frees him from challenge for cause, by the State, or by the defendant. It does not distinctly appear from the bill of exceptions that the State, or the defendant, when the court allowed the first challenge for cause, had passed upon and accepted the jurors challenged. In reference to the jurors subsequently challenged, it does not appear whether they were of the regular jury, or of the talesmen. If they were of the talesmen, the challenge was not too late. If of the regular jurors, whether the challenge was in time, depends upon whether the State and the defendant had previously elected them by any positive act. 3. The statute declares that, on trials for offenses which may be punished capitally, or by imprisonment in the penitentiary, it is ground of challenge for cause by the State, that a juror is of the opinion a conviction should not be had on circumstantial evidence.-R. C. § 4182. The purpose of this, and of all the statutes in reference to juries and jurors, is to secure to the State, and to the accused, a trial by an honest, impartial, intelligent jury of resident citizens. The enumeration of particular grounds of challenge was not intended to exclude others, which affect the integrity, or the indifference, or the intelligence of the juror, and which, if disallowed, would disappoint the objects of a trial by jury.— State v. Marshall, 8 Ala. 302. The law commands a conviction for a misdemeanor, or a felony, on circumstantial evidence, if the circumstances are so strong and conclusive as to exclude any other reasonable hypothesis than that of the guilt of the accused. If would be singular, if such evidence was to be addressed to a juror, whose opinions were formed and fixed against its sufficiency, before its introduction, and before he was instructed as to the legal rules by which its sufficiency was to be tested. There are misdemeanors, in which knowledge of a particular fact is an indispensable element of the offense. The proof of knowledge, in such cases, is most often dependent on circumstantial evidence. The knowledge is to be inferred from facts, or circumstances, which may be proved. In the present case, the State was bound to prove that the person to whom the defendant had sold or given spirituous liquor was of intemperate habits, and that the defendant knew it. There was not, and but sel |