¶1December 22, 1956, Rowell killed Richard Pattillo by shooting him with a pistol. Indicted for first degree murder, convicted of voluntary manslaughter, his punishment set at four years’ imprisonment, he appeals from judgments conforming to the jury’s verdict and denying him a new trial.
¶2The trial court declared a defense witness, Mr. W. C. Phillips (who had been a member of the indicting grand jury), incompetent.
¶3Previously thereto Rowell had testified as to his strenuous efforts to avoid difficulty with Pattillo, that only when impedimented and hindered from retreating, and after Pattillo, who had a rock in his right hand, hit him with his left fist, there was left no reasonable alternative to his shooting Pattillo in self-defense. The defense evidence was consistent with the claim that Pattillo was the aggressor.
¶4The defense offered Phillips to show that approximately two weeks before the shooting Pattillo made a threat to beat the hell out of Willie Rowell. Pattillo made this threat, according to the showing, in the presence of Mr. and Mrs. Phillips at their home.
¶5The trial judge took Phillips on voir dire and elicited from him that he had not said anything to the grand jury that he knew of any threat made by Pattillo against Rowell. Whereupon, the court ruled Phillips was not a competent witness in the case.
¶6Prior threats by a deceased (even if uncommunicated to the defendant) after a showing of self-defense are admissible as to the true nature and character of the deceased’s purported attack, McGuff v. State, 248 Ala. 259, 27 So.2d 241.
¶7Rowell cites Ex parte Montgomery, 244 Ala. 91, 12 So.2d 314, and Gore v. State, 22 Ala.App. 136, 114 So. 791 (modified in part 217 Ala. 68, 114 So. 794).
¶8In the Gore case there is dictum to the effect that a grand juror may be a witness in support of a motion to quash an indictment based on the absence of legal evidence before the grand jury.
¶9 Testimony before a grand jury is (after indictment and arrest) not a matter of secrecy, Code 1940, T. 30, § 96, applying only to premature disclosure, Ex parte Montgomery, supra.
¶10Our statute on witnesses in criminal cases, Code 1940, T. 7, §§ 434-440, makes no exclusion of a grand juror.
¶11Code 1940, T. 30, § 91 (as to duty of grand juror to disclose knowledge of “a public offense”), does not apply here: the grand jury had the case before it.
¶1297 C.J.S. Witnesses § 107, has a headnote reading:
“Apart from governing statutes, grand jurors are, in general, competent witnesses as to facts which they are not precluded from disclosing, but not as to matters concerning which the policy of the law requires secrecy!”
¶13The text says in part:
“ … A fortiori, a witness as to facts in connection with an alleged crime is not incompetent at a trial therefor because he was a member of the grand jury which found the indictment.”
¶14citing Mack v. State, 203 Ind. 355, 180 N.E. 279, 83 A.L.R 1349, wherein a grand juror was properly permitted to be a prosecution witness as to a matter not touching the deliberations of the grand jury. United States v. Charles, 25 Fed.Cas. page 409, No. 14,786 (confession in course of another investigation). State v. McDonald, 73 N.C. 346, State v. Hamm, 11 Mo.App. 585 (syllabus).
¶15*615The oath, “the state’s counsel, your fellows’ and your own, you shall keep secret,” relates to debates, deliberations, matters no billed and the voting. Title 30, § 87, allows disclosure of testimony in a judicial proceeding where consistency or truth is at issue. State v. Coffee, 56 Conn. 399, 16 A. 151.
¶16We consider the refusal to allow the witness Phillips to testify was reversible error, because we cannot gauge what effect his testimony might have had in (or in not) generating a reasonable doubt in the minds of the jury.
¶17Reversed and remanded.