The opinion
*250 ON REHEARING
XII.
Appellant says we have failed to go into the claimed errors all of which came about from the trial judge’s sustaining objections made by the State. The occasion was on qualifying the venire. The questions as given in brief are:
“Q Do you think it is morally wrong to take another man’s wife and take her away from the home ?”
“Q I would like to ask the jury if it would make any difference with them, as to their opinion, if it were developed by the evidence that this deceased was out with the defendant’s wife at the time of the shooting, at 11:00 o’clock at night, or approximately thereabouts.”
“Q Would you gentlemen consider a plea of insanity, interposed by the Defendant, where the facts would show that there was an occurrence which could, in a way, affect him mentally in such a way he would be unable to resist an impulse to commit some act?”
“Q If you were informed by the Court that the defendant is presumed to be innocent, and that the law presumes him to be innocent, would you give him the benefit of a doubt in that event?”
In order to afford a proper certiorari setting, we elaborate to show the entire pertinent part of the record from the transcript of evidence:
“PROCEEDINGS
“(WHEREUPON, a jury venire was brought in, qualified, identified, and the following proceedings were had and done:)
“THE COURT: Now, gentlemen, that brings us down to the voir dire examination, both for the State and for the defense.
“Does the State have questions on voir dire?
“MR. HAWKINS: Yes, sir.
“(Thereupon, special questions were asked by Mr. Hawkins, following which the following proceedings were had and done:)
“THE COURT: Mr. Rogers?
“MR. ROGERS: Judge, at this time, I would like, respectfully, to ask the Court if it would let me question each juror individually as to any bias, or prejudice, and, I might state, in view of the fact that the defendant was a policeman at the time the offense with which he is charged was committed, I believe it would better serve justice if I could ask each juror individually.
“THE COURT: Mr. Rogers, I won’t permit you to examine each juror individually. I will permit you to examine them in panels of thirteen.
“However, I realize that there are some questions which may be individual to a juror, because of certain peculiarities, experience, or employment, residence, and things of that sort, and, in that event, you may examine the juror individually.
“Plowever, I will require you, generally, to examine at least in groups of thirteen.
“MR. ROGERS : The three panels?
“THE COURT: That is correct.
“Mr. ROGERS: May we reserve an exception to that ?
“THE COURT: Yes, sir.
“(Thereupon, Mr. Rogers asked special questions of the jury venire, during which the following proceedings were had and done:)
“MR. ROGERS: I believe Mr. Hawkins asked you the question that, if you thought it was morally wrong to drink and I believe, Mr. Woods, you said you did.
*251 “Now, I will address these twelve men with this question: Do you think it is morally wrong to take another man’s wife and take her away from the home ?
“MR. HAWKINS: Don’t answer that. We object to that, if the Court please.
“THE COURT: I can’t hear you.
“MR. HAWKINS: We object to that as being an improper question. It doesn’t furnish information which would shed any light on striking a jury in this case. It is an argument which should come at the conclusion of the testimony, during the trial of the case, and not as for information at the present time or such a subject as that, that it is wrong to take a man’s wife away. No evidence of that fact in this case.
“MR. ROGERS: May I say this to the Court — •
“THE COURT: I don’t want you to try to argue the case, and — ■
“MR. ROGERS : May I say this: May it please the Court, I was not arguing that. I was asking the question as to whether they thought it was morally wrong, in view of Mr. Hawkins’ opening up that avenue, if they thought it was morally wrong to drink.
“I think I have just as much right as he does to go into that various aspect of it. I feel like it is my duty to get as much information about this, and that is the only way I know how to ask it.
“THE COURT: Sustain the objection.
“MR. ROGERS: Judge, may I ask another question along that line. I want to ask it, but I do want to protect the record on it, and I am not trying to impose on the Court or record, either.
“MR. HAWKINS: I would like to ask you to ask the question in the Court’s chambers, if it is of such a nature as that.
“THE COURT: I think if you would confine yourself to general objections, rather than trying to tell me how to run court, Mr. Hawkins, we can get along better.
“I was going to ask you to step over here and tell me what the question is.
“(Thereupon, ensued an off the record discussion, out of the hearing of the jury, following which the following proceedings were had and done:)
“THE COURT: What was the question, George ?
“MR. ROGERS: I would like to ask the jury if it would make any difference with them, as to their opinion, if it were to be developed by the evidence that this deceased was out with the defendant’s wife at the time of the shooting, at 11:00 o’clock at night, or approximately thereabouts.
“THE COURT: And I sustain the objection to that question.
“MR. ROGERS: And I reserve an exception.
“(Thereupon, Mr. Rogers continued asking special questions of the jury venire, during which the following proceedings were had and done:)
“MR. ROGERS : Gentlemen, for your information, there is a plea of insanity interposed in this case by this defendant.
“I would like to ask any of you gentlemen if you have any fixed opinion, with respect to a plea of insanity on the part of a defendant charged with an offense, that would prejudice the rights of this defendant in any way ?
“If you have such an opinion — I am addressing myself to the twelve in the box. If you have such an opinion, would you please let me know it.
“Would you gentlemen consider a plea of insanity, interposed by the defendant, where the facts would show that there was an occurrence which could, in a way, affect him mentally in such a way he *252 would be unable to resist an impulse to commit some act?
“MR. HAWKINS: Your Honor, if the Court please, I think the question of insanity as depicted here, as an irresistible impulse, wouldn’t be a matter of materiality and information.
“THE COURT: Sustain the obj ection. I might state this to you gentlemen at this time: It will be a rule — it is a rule that jurors may not be questioned concerning anticipated instructions or theories of law, and jurors may not be asked what kind of verdict they might render under any circumstances.
“That will be the ruling. It is the ruling of the Court, and it might help expedite matters if I state that at this time.
“MR. ROGERS: I understand that, but I didn’t think my words would bias or prejudice'on the jury.
“THE COURT: I sustain the objection.
“MR. ROGERS: Reserve an exception.
“(Thereupon, Mr. Rogers continued asking special questions of the jury venire, during which the following proceedings were had and done:)
“MR. ROGERS: Gentlemen, I am going to address this to — in order to expedite matters — to the venire out here. That means all thirty-nine of you, the three panels.
“If you were informed by the Court that the defendant is presumed to be innocent, and that the law presumes him to be innocent, would you give him the benefit of a doubt in that event ?
“MR. HAWKINS : I object to the question on the ground it is a question of law. It is seeking information on a question of law, which the Court will give to the jury at the conclusion of the trial.
“THE COURT: I sustain the objection.
“MR. ROGERS: Reserve an exception.
“(Thereupon, Mr. Rogers continued and concluded asking special questions of the jury venire, following which the following proceedings were had and done:)
“MR. ROGERS : I believe that’s all right now, Judge.
“(Thereupon, proceedings were in abeyance, following which special questions were asked by Mr. Gwin, following which the following proceedings were had and done:)
“THE COURT: All right, gentlemen, you may proceed to strike.”
We cannot here assume that the last quotation contains all the voir dire questions put to the prospective jurors. Thus we note that Mr. Rogers (R. 66) complained that the Deputy District Attorney, Mr. Hawkins, had asked if they thought it was morally wrong to drink. No prior reference is made as to what questions Mr. Hawkins posed.
There is confusion in the Alabama opinions as to the latitude of voir dire examination. In 1923 the Code Committee, to modify the English rule (see Anno. 99 A.L.R.2d 7, 16, § 2 (a)) as shown in Bales v. State, 63 Ala. 30 , enacted what is T. 30, § 52, of the present Code.
We find Brickell, C. J., saying in Bales, 63 Ala. at p. 38 :
“The proposed examination of Smith, Tucker and Strange, to ascertain whether they were subject to challenge for cause, after they had been examined by the court, was properly refused. We know of no authority, and we perceive no reason for any such speculative, inquisitorial practice, consuming needlessly the time of the court, and offensive to the persons subjected to it. The rule is ancient, that neither party has a right to interrogate a juror before he is challenged. — 1 Chitty’s Cr.Law, 543-^14; King v. Edmonds, 4 Barn. & Aid. 671.”
As late as 1908, we find this rubric relied on by Denson, J., in Walker v. State, 153 Ala. 31 , 45 So. 640 :
*253 “After a juror lias been sworn and examined by the court touching his qualifications for service, and declared competent, the court may as matter of grace allow the defendant to ask him additional questions; but it is not a matter of right, and the refusal by the court to allow additional questions will not constitute error. * * * ”
Perhaps Tyson, J., in Jarvis v. State, 138 Ala. 17 , 34 So. 1025 , stated the principle extant before 1923 more forcefully:
“While it is doubtless true that the rule prevailing in this state is that, before challenge, neither party has a right to interrogate a juror to ascertain whether he is subject to challenge (Bales v. State, 63 Ala. 30 ; Hawes v. State, 88 Ala. 37, 66 , 2 So. 302 ; Lundy v. State, 91 Ala. 100 , 9 So. 189 ; Hornsby v. State, 94 Ala. 55 , 10 So. 522 ), yet, the court, in the exercise of its discretion, may permit it to be done and, when allowed, is not revisable. Mann v. State, 134 Ala. 1 , 32 So. 704 ; State v. Lautenschlager, 22 Minn. 514 ; 1 Thompson on Trials, § 101, p. 100. The action of the court in allowing the solicitor to interrogate jurors Rabby and McMillan as to their relation, either by blood or by marriage, with the defendant, and in permitting the solicitor to ask Juror .Curtis Bush, ‘Are you opposed to capital punishment in a case of murder?’ is not revisable. * * * ”
Carefully analyzing the operation of § 52, supra, as construed by cases such as New York Times v. Sullivan, 273 Ala. 656 , 144 So.2d 25 , and Aaron v. State, 273 Ala. 337 , 139 So.2d 309 , we consider that our Supreme Court has avulsed the mandatory “shall have the right” twice used in § 52 into a mere precatory adjuration to the humane instincts of the trial judge. The question of the voir dire examination of would be jurors allowed or disallowed below is not subject to review on appeal. Rose v. Magro, 220 Ala. 120 , 124 So. 296 (hn. 10). (Italics added.)
Being conformed by the majority opinion in Ballard v. State, 236 Ala. 541 , 184 So. 260 , we forego considering the due process implications of this conclusion. Code 1940, T. 13, § 95; Redus v. State, 243 Ala. 320 , 9 So.2d 914 .
Moreover, the use of hypothetical questions is of doubtful propriety certainly where one aspect of the putative evidence is singled out to probe for a sympathetic commitment as much as to explore for an impartial mind. Thus the summary to the Annotation, “Propriety and Effect of Asking Prospective Jurors Hypothetical Questions, on Voir Dire, as to how they Would Decide Issues of Case,” 99 A.L.R.2d 7 , at page 18, states:
“For a wide variety of reasons, however, certain hypothetical questions have often been considered improper. Some questions have been so considered because of their underlying purpose, and others because of their form. Although occasional decisions indicate disapproval of all hypothetical questions to jurors, it is generally agreed that the mere fact that a question is hypothetical does not make it improper. The main reasons for considering certain hypothetical questions improper appear to be essentially as follows: (1) they tend to entrap, influence, commit, or obtain a pledge from jurors, or to ask them for their decision in advance of their hearing any testimony; (2) they are irrelevant, because they cannot be expected to result in an answer having any bearing upon a juror’s impartiality or other qualifications, or because they are designed to ask about matters of law or other matters which are adequately covered by the judge’s instructions, and which it is therefore unnecessary to ask the jurors about on voir dire, since it can be assumed that they will follow the instructions; or (3) they are faulty in form, for example, because they are ambiguous, obscure, confusing, or inconsistent, or because they contain an incorrect or inadequate statement of law.”
*254 XIII.
It is contended that the Deputy District Attorney, in closing argument, breached the command of Code 1940, T. 15, § 305, -which reads:
“§ 305. On the trial of all indictments, complaints, or other criminal proceedings, the person on trial shall, at his own request, but not otherwise, be a competent witness; and his failure to make such request shall not create any presumption against him, nor be the subject of comment by counsel.”
The record fails to give the verbatim text of the prosecutor’s remarks. All we ■find in the record is:
“THE COURT: * * * As I understand it, the argument that the defense objected to was an argument wherein Mr. Gwin stated, in effect, that the defendant, as an officer, had arrested many, and that sort of thing, speaking of duties of a Police Officer, and he had testified in many cases.
'“MR. MILLS: I believe I wrote it down almost verbatim. He said this man has testified in Court on many occasions in ■many cases.
“TPIE COURT: To put it in context,—
“MR. MILLS: He had previously stated he had made many arrests.
“THE COURT: He started off by saying he had been a policeman some eight years, and he went into the question of .arrests, and had been a witness in many cases, and—
“MR. MILLS: And testified on many occasions.
“THE COURT: The Court overrules the objection. The defendant had objected and the grounds to that portion of the State’s argument, on their objection, was, in the defendant’s words, that there was reference to the fact that, either directly or indirectly the defendant hadn’t taken the witness stand.” (R. 573, 574.)
This line of argument could be directed to Ward’s sanity as much as to his not taking the stand. We find no error in either the overruling shown above or in denying the defense motion for mistrial.
XIV.
In view of the giving of defendant’s charge 44 and the tenor of the pertinent part of the oral charge, the refusal of requested charge 45 was not error.
XV.
In Carr v. State, Ala.App., 198 So.2d 791 5 ( 6 Div. 157 ), we reviewed the “irresistible impulse” modification of M’Naghten as recognized in Alabama. In Report of the Royal Commission on Capital Punishment, September, 1953, Cmd. 8932, Appendix 9B, at p. 410, the Parsons opinion is described as “the leading judicial exposition of the irresistible impulse doctrine.”
This commentary notes that only one other American state has followed Alabama in requiring the defense to prove that uncontrollable impulse was the sole cause of the act. This point, too, was before us in Carr, supra.
In requested charges 46, 49, and 52, the defendant used “wholly” or “solely” to modify the product of mental disease. However, in certain parts of the oral charge (see quotation, supra) the trial judge omitted “solely” in stating the rule of excusing mental disease.
Either the Legislature or the Supreme Court of Alabama is the proper forum for any radical departure from the Parsons rule. The welter of confusing psychiatric opinion ranging from Szaz to Overholser and Cleckley justifies caution.
We consider the application for rehearing must be
Overruled.
. 43 Ala.App. 642 .