¶1The special- venire from which the .jury was selected for the trial of the defendant was drawn and organized in accordance with sections 5004-5005 of the -Code of 1896, and the court,' therefore, prop■erly overruled the motion to quash the ' venire. Because several of the jurors of the regular panel, which constituted a paid of the special venire, were, at the time of the defendant’s case was called for trial, engaged in the trial of another case, upon which they had retired to the jury room for the purpose of deliberation and making a verdict, constituted no good reason for delay in entering upon the-trial of the defendant.
¶2There was no error in the court’s action in admitting statements by the deceased; made in the presence -of *47the defendant, after be bad received the fatal wound, nor was there error in admitting' statements made by ■John Bimmons, brother of the, defendant, in the defendant’s presence.
¶3Evidence of Mrs. House, given on a former trial in the case of The State of Alabama v. Maley Simmons, was properly excluded. The evidence of a deceased or absent witness given upon the former trial is only admissible upon the second trial between the same parties or their privies and in relation to the same subject matter. Here the parties were not the same, nor was there any privity.
¶4The verdict, it appears, was received by the court from the jury on Sunday. In this there was no error. Reid v. State, 53 Ala. 402; Chamblee v. State, 78 Ala. 468. There is nothing in the record from which it can he said or inferred that the judgment was entered on that- date — Sunday. In support of the judgment, nothing otherwise appearing of record, it will be presumed that the judgment on the verdict was rendered on a subsequent day of the court.
¶5The bill of exceptions shows that the defendant was present when the verdict was received, and that an effort was made ¡to find defendant’s counsel, but that after several hours’ delay and search he could not be found. The court thereupon appointed another attorney at the bar to represent the defendant in receiving ¡the verdict of the jury. The jury was duly polled. Certainly no injury resulted to the defendant from this action.
¶6The court gave several written charges at the request of the defendant, and refused one, and this one is so palpably bad as to need no further comment.
¶7We find no reversible error in the record, and the judgment of the circuit court must be affirmed..