[Smith v. The State.] dom can there be, direct proof of such knowledge. The frequency and publicity of his intoxication, in the immediate vicinity of the defendant's residence and place of business, and the knowledge of his habits in the community, and by those not more intimate in intercourse with him than the defendant, were circumstances from which the jury were authorized to infer that the defendant had knowledge of such habits. The administration of justice would merit, and soon sink into contempt, if a juror was called as the final trier of the evidence, who, however honestly, had formed an opinion upon, and prejudged its sufficiency. It is good ground of challenge for cause by the State, in any case, whether of felony or misdemeanor, that the juror holds to such an opinion of the law, that he cannot, or will not, convict on circumstantial evidence, however strong it may be.-1 Bish. Cr. Pr. § 916. 4. The law, common and statutory, is careful to exclude from the jury-box a juror who has, in any degree, prejudged the issue he is to try; or who is under any bias, or want of impartiality, which would prevent him from hearing, trying, and determining fairly. The juror who has a fixed opinion as to the guilt or innocence of the accused, which would bias his verdict, is excluded by statute. The grand juror, who has indicted the accused, is excluded by the common law, though he hears only the evidence for the State.--Birdsong v. State, 47 Ala. 68. Or, if there has been a mistrial, no member of the jury failing to agree is competent as a juror on the second trial.-1 Bishop's Cr. Pr. § 913. There seems to have been a trial of another defendant, for an offense identical with the offense charged in the present indictment the giving or selling spirituous liquor to John H. Wilson, a man of known intemperate habits. The gist of the offense, in each indictment, was the character of the person to whom the liquor was sold or given, and the knowledge by the defendant of such character. The controverted facts, on the trial of the present indictment, were, the character of Wilson's habits, and the defendant's knowledge of that character. The fact of sale of the liquor was clearly shown, and there was no conflict of evidence on that point. If the controversy, on the former trial, was confined to these facts, it is apparent the jurors on that trial were not impartial. They had formed and expressed an opinion, which, of necessity, would bias their verdict. The issues in the two causes, and the evidence to prove or disprove them, are so identical that we think the court was justified in assuming the jurors on the first trial were disqualified. If a juror had announced to the court, that he had formed and expressed an opinion [Smith v. The State.] that Wilson was, or was not, of intemperate habits, it would have been the duty of the court, at any time before he was sworn, or before he was accepted by the defendant and the State, if it was not necessary to swear him in the particular case, without waiting a challenge for cause, to exclude him from the jury. The impartiality of the jury-box, the purity of the administration of justice, would require it. Upon Wilson's habits, the jurors excluded had passed; and having passed upon them, they had already adjudged one of the most material issues, or facts in issue, involved in the trial of the present indictment. They were as incompetent as if they had been jurors on a former mistrial.-1 Bish. Cr. Pr. $$ 912-13. The cases of Boggs v. State (45 Ala. 30), and Lyman v. State (Ib. 72), are in conflict with the views we have expressed, and are in conflict with the case of State v. Marshall, 8 Ala. 302. The error of the decision, in these cases, lies in the supposition, that there are no causes for the exclusion of jurors, except such as are enumerated as challenges for cause in the statute. The incorrectness of that supposition is shown in the subsequent case of Birdsong v. State (47 Ala. 68), in which it was held, that a grand juror was not a competent petit juror, on the trial of an indictment found by the jury of which he was a member. The true rule, we think, is that expressed in State v. Marshall. And we cannot doubt it is the duty of the court, when it shall appear satisfactorily that any person called as a juror has not the requisite qualifications of integrity, impartiality, or intelligence, at any time before he has been elected by the State and the defendant, to reject him. The State certainly has no interest, and the defendant has no right, to introduce into the jury-box unfit persons. It is the duty of the court to guard against their introduction. 5. When, on a trial for a misdemeanor, or a felony which may not be punished capitally, vacancies in a petit jury are caused by challenges, or by the rejection or discharge of jurors by the court, it is within the discretion of the court to direct such vacancies to be supplied, either by calling jurors from the regular pannels in attendance, or by summoning talesmen from the bystanders, or from the county at large.R. C. $$ 4090-91; Wilson v. State, 31 Ala. 371. 6. In Stanley & Elliott v. State (26 Ala. 26), it was held competent for a witness to state that a person was of known intemperate habits. The general rule is, that the opinions of a witness, as to the existence of a fact, or his inferences or conclusions from facts, are not evidence. In the case referred to, the court say: "The question as to the intemper [Smith v. The State.] ate habits is purely one of fact; and it can make no difference in principle, that being the case, that the matter in relation to which the witness is required to speak is made up of more than one fact." The only authority cited by the court is Massey v. Walker (10 Ala. 288), in which it was held that "a witness was properly permitted to testify that another, at a particular time, was largely embarrassed by debt.'" If a witness should testify to such a state of facts as clearly and satisfactorily proves that his acquaintance with. a particular person was of such character that he must know his habits, and must know whether he was given to the immoderate use of intoxicating liquors; if he should show, by the facts stated, these habits, as they fell within his observation, it may be proper to permit him to state, in connection with the facts, that the person was of intemperate habits; as it would be proper for him, after having stated his opportunities or ability to testify in reference to the particular fact, to state that the same person was sane or insane.-Norris v. State, 16 Ala. 776; Florey v. Florey, 24 Ala. 241; Powell v. State, 25 Ala. 21; Stuckey v. Bellah, 41 Ala. 700. But it cannot be permissible for him to state that these facts were known. Then he testifies to the inference which the jury must draw from all the evidence he is substituted to their place, and the conclusion, which is the result of the exercise of their judgmeat on all the evidence, would be reduced to a fact which the witness would prove. We cannot concur in the opinion expressed in Stanley & Elliott v. State, supra. 7. The use of intoxicating liquors to drunkenness, or to an obvious change, mentally or physically, or both, from the natural condition of sobriety, is an acquired habit. The frequent repetition of the use, producing the change, renders the man of intemperate habits. When the facts are before the jury, they will not fail to determine whether the habit is, or is not, imputable to the particular person. The fact is determinable, as the fact of habit would be determinable in reference to any other matter. Is there a frequent repetition of the immoderate use of intoxicating liquors? If the opportunity is present, will there be, judging from past conduct, a repetition of such excessive use? If so, and there is knowledge of the past conduct, the law commands all to abstain from selling or giving to him vinous, spirituous, or malt liquors. 8. It may be that Wilson was "of intemperate habits;" but, if these habits were unknown to the defendant, the offense with which he is charged was not committed. If the defendant had good reason to believe that such were Wilson's habits, the existence of the reason is a fact, or circum [Smith v. The State.] stance, from which the jury may infer the guilty knowledge. The inference, or presumption, to be drawn from the fact, lies within the province of the jury-it is not a presumption of law.-1 Green. Ev. § 44. There are many cases in which knowledge of the particular facts is essential; as on an indictment for uttering a forged instrument, knowledge of its false character on the part of the utterer must be shown. That he had good reason to believe such was its character, is a fact or circumstance which may be shown to the jury in proof of knowledge, but it is not conclusive-it is simply a fact, on which the jury may found the presumption of knowledge. So, on an accusation of receiving stolen goods, circumstances may be shown which may lead to the conclusion that the defendant had good reason to believe the goods were stolen. These circumstances are admissible in evidence, and on them the jury may found the presumption of guilty knowledge. Whether the presumption shall be drawn from them, lies within the province of the jury. In instructing the jury that the defendant was guilty, if he had good reason to believe Wilson was of intemperate habits, the court invaded the province of the jury. It was assuming that the presumption from the fact was matter of law, and not of fact, to be drawn by the jury. 9. In Stallings v. State, 33 Ala. 425, overruling Stanley & Elliott v. State, 26 Ala. 26, it was held that the notoriety of the intemperate habits of the person to whom the liquor was sold, in the neighborhood in which the defendant resided, is a fact proper to be submitted to the jury, for their consideration in determining whether the defendant had knowledge of such habits. If, from the fact of notoriety, the jury should draw the inference of knowledge, it would be an inference of fact. Whether the inference is just and legitimate, it is the province of the jury to determine. The charge given at the instance of the solicitor is so expressed that the jury were probably, we may say certainly, impressed with the conviction that they were bound to infer the guilty knowledge from the fact of notoriety; and thus invaded their province. Whether the inference of knowledge should be drawn, depends on the degree of notoriety, the opportunity of the defendant to acquire knowledge of it, and his opportunities to observe or to be informed of the habits of the person. The jury must be left free to pronounce, from all the evidence, whether they are satisfied the defendant had the knowledge which renders his act criminal. For the errors noticed, the judgment must be reversed, and the cause remanded. The defendant will remain in custody, until discharged by due course of law. [Weed v. The State.] Weed v. The State. Indictment against Retailer of Spirituous Liquors. 1. Sufficiency of indictment.-An indictment for selling liquor to a minor (Rev. Code, § 3619), which alleges that the sale was made "without the consent of the parent, guardian, or person having the legal charge of the said minor, is not demurrable, because it omits the word master after the word guardian, as used in the statute. (Overruling Bryan v. The State, 45 Ala. 86.) 2. Proof of infancy.-An uncle of the youth to whom the liquor was sold, having known him since infancy, may testify, "judging from his size and appearance when I first saw him, twenty years ago last fall, I can and do say, that he is not, to the best of my belief, twenty-one years of age now;" such testimony is not secondary evidence; nor is it rendered inadmissible, because the parents of the minor, who are shown to reside in the county, are not introduced as witnesses. 3. Charge to jury as to evil consequences of crime, and authorizing fine to repress it-In charging the jury, on a trial under an indictment for selling liquor to a minor, the judge may properly call their attention to the evil consequences resulting to society from that offense, and instruct them that, if they find the defendant guilty, they should impose on him such a fine, not exceeding the statutory limit, as may deter him and others from future violations of the law. FROM the Circuit Court of Talladega. Tried before the Hon. GEO. H. CRAIG. GEO. W. PARSONS, for the defendant.-1. The demurrer to the indictment ought to have been sustained.-Bryan v. The State, 45 Ala. 86. 2. The objections to Bell's testimony were well taken. He was allowed to state his opinion, which was very indefinite, and at best but secondary evidence; while the parents of the alleged minor were not introduced, although it was shown that they resided in the county; and Law himself testified as to his own age, "from the family bible at home." The law requires the best evidence of which the case is susceptible.-Morton v. The State, 30 Ala. 527; Scales v. Desha, 16 Ala. 308; Glover v. Millings, 2 S. & P. 28. 3. The charge of the court to the jury reads more like a speech for the prosecution, than a calm statement of the principles of law applicable to the case. It is argumentative, evasive, and calculated to mislead the jury, if it does not invade their province; and it consists largely of statements about matters as to which there was no evidence.Cothrane v. Moore, 1 Ala. 423; Salomon v. The State, 28 Ala. 83; 1 Brickell's Digest, 338, § 41. That it did influence the jury greatly to the prejudice of the defendant, is shown by |