¶1Motion was made by defendant to quash the panel of jurors drawn and selected to try the case; *64also to discharge from the panel selected the two Wood-evs. These motions were predicated upon the fact that these two venire-men had separated themselves from the other ten, all of which had been selected and were to compose the jury to try the case. The twelve venire-men had not been sworn as jurors. Prom this statement it will be seen that the question presented is whether the rule in capital cases forbidding the jury to separate applies.
¶2This question is res integra in this State. It has, however, frequently arisen in other jurisdictions, notably in the famous trial of Burr. In that case, it being impracticable to empanel a jury on the first day, four were sworn, and the question being raised, whether they should be confined, the decision of Chief Justice Marshall was, “that there was no necessity for delivering the jurymen, who had been or should be sworn, unto the custody of the marshal, until the whole number had been empaneled and sworn.”
¶3The question came before the Supreme Court of Missouri in the case of The State v. Burns (33 Mo. 483), and after a review of the authorities, English and American, the court held that the rule does not apply to veniremen before being sworn. “In fact,” says the court, “they were not jurors, and not, therefore, in the custody of any officer of the court. Though selected by both State and prisoner, they were not clothed with the power and authority of a jury, but were still subject to be set aside, excused or challenged. See also Martin’s case, 2 Leigh (Va.) 745; Epe’s case, 5 Gratt. 676; Tooel v. Com. (Va.) 11 Leigh 714; Curtes v. Com. 87 Va. 589; Woodson v. State, 40 Tex. Crim. Rep. 685; Smith v. State, 63 Ga. 168; State v. Voorhees, 12 Wash. 53.
¶4Coke, Foster and Blackstone state the rule to be “that after the jury are sworn and charged with the prisoner and after evidence has been given the jury cannot be discharged or separated.”-Martin’s case, supra.
¶5Doubtless the defendant had the right, if he entertained the notion that the two venire-men had been talked with about the case, to have their impartiality tested again before the oath was administered to them. *65His failure to ask this of the court was a waiver of the right.-Smith v. State, supra. The motions were properly overruled.
¶6The statement of the witness Penny that “defendant acted like he thought five or six men were after him,” was a mere conclusion and was properly excluded.-Carney v. State, 79 Ala. 14; Harrison v. State, 78 Ala. 5.
¶7In view of the defense of “not guilty by reason of insanity” and the effort to establish it, the questions propounded to the defendant’s father by the solicitor, on cross-examination, were not improper^
¶8It would seem that the request made to give the refused charges should be construed as a request to give them in their entirety.-Verberg v. State, 137 Ala. 73. However this'may be, under the issues upon which the case was tried, all the charges were properly refused. See authorities cited in brief of Attorney-General.
¶9Affirmed.