
    Walston vs. Commonwealth.
    APPEAL FROM ANDERSON CIRCUIT.
    1. The dying declarations of a person who is wounded, is clearly admíssible evidence against a person charged with homicide, according to the English Common Law, and is not changed by our laws.
    
      (Greenlcaf on E»., 1¿6.)
    2. But to render dying declarations admissible, "they must be made in extremis, under a solemn sense of impending dissolution. In such a situation every motive to falsehood is presumed to be silenced, and every motive to truth in iively exercise. Its credibility is, however, to be decided by the jury.
    3. The rule of law admitting dying declarations to be given in evideuce against the accused in trials for homicide, is not changed by any Constitutional provision of Kentucky. The Constitution does not change the rules of evidence which existed at its adoption, but only secures to the accused the right to confront the witnesses who may be introduced against him to prove such matters as were, according to the settled principles of law, evidence against him. The law determines the admissibility of testimony. The Constitution secures to the accused the right to confront the witness who details that testimony, face to face. (Woodsides vs. the State, Howard’s Miss. Rep., 655; Anthony vs. the State, 1 Hfciy’s, 265.)
    4. The only grounds upon which a judgment can be arrested in a criminal case, is that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the Court.— (Criminal Code, sec. 270.)
    5. The Criminal Code giving the right of peremptory challenge to the Commonwealth, in criminal cases, applies as well to trials in prosecutions commenced before, as to those commenced after the first day of September, 1854. (Criminal Code, sec. 1, 2 and 23, chap. 21, page 191.) This is not an ex post facto law. (Calder, etux. vs. Bull, et urn. 3 Dallas, 386; 12 Wheaton, 480; 3 Grattan, 632.) The words ex post facto relate to crimes, .and not to criminal proceedings.
    
    The facts of the case are stated in the opinion of the Court.
    
      Thomas N. Lindsey, for the appellant—
    On the trial of this case, in the court below, two questions arose which it is believed were decided erroneously, and to the prejudice of the appellant. First, as to the right of the Commonwealth to three peremptory challenges, which was allowed ; Second, the right of the appellant to have the regular panel of jurors exhausted, before calling by-standers — which was denied by the Court.
    It was supposed by the Attorney for the Commonwealth, and so decided by the Court, that the Code of Practice in criminal proceedings was applicable to this case. This was denied by the counsel for appellant, and is now disputed.
    By the act of the Legislature adopting the Code, it is insisted that the Legislature did not intend to apply its provisions to the trial of cases which had occurred before the passage of the act, and the prosecution commenced under the existing laws, but that such prosecutions should be conducted under the laws as they then existed. And though the Legislature meant that after the first of July, 1854, the proceedings shouldbe under the Code, it was not intended to invalidate or affect by the Code any proceedings begun before the first of September, 1854; but that all proceedings began before the last date should be conducted under the old laws, to their conclusion, as if the Code had not been adopted — still, as is supposed, giving the benefit of an appeal,
    No doubt the Legislature supposed the Code would be distributed and its provisions known before the first of July, and that offences committed between the passage of the act and the first of July might be prosecuted under its provisions; yet, as it might not be known, it was provided that all prosecutions begun before the passage of the act, or before the first of September, under the old forms, should be concluded under the laws existing at the adoption of' the Code. How is it possible to withdraw the operation of the second section of the foregoing act from cases where the prosecutions had been commenced before the passage of the act, and limit them to those begun under the old forms between the first of July and first of September? No such idea is to be gathered from the statute. There is nothing in it which indicates a purpose to apply its provisions in any respect to proceedings begun under the old forms; but whenever begun under the old forms before the first of September, 1854, they were to be conducted, to 1heir conclusion, under the laws existing at the adoption of the Code, as far as the old law applied. Then the Code gave the right of appeal after the first of July. This view will avoid a constitutional question, and be giving the law such a construction as it is believed; was intended by the Legislature.
    If this interpretation be adopted, it follows that the Commonwealth had no right'of peremptory challenge ; because before the adoption of the Code, and according to the laws existing at its adoption, no such right existed. (1 5'tat. law, 528.)
    
      But if this interpretation is not sustained, and the provisions of the Code shall be construed to apply to an act done before the adoption of the Code, and to a proceeding or prosecution commenced under the old laws, then it is insisted that a constitutional question arises. The twentieth section of the bill of rights declares “that no ex post facto law, or law impairing the obligation of contracts, shall be made.” And the Constitution of the United State, art. 1, sec. 9, contains the same inhibition.
    The case of Colder and Wife vs. Bull and Wife, 3 Dallas, 386, defines what is meant by ex post facto laws, in these terms: “First, Every law that makes an action done before the passing of the law — and which was innocent 'when done — criminal, and punishes such action. Second, Every law which aggravates a crime or makes it greater than it was when committed. Third, Every law that changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed. Fourth, Every law which changes the legal rules of evidence, and receives less or different testimony than the law required, at the time of the commission of the offense In order to convict the offender.” These principles have been recognized by the Court of Appeals of Kentucky in the case of Davis vs. Ballard, 1 J. J. Marshall, 578; Fisher vs. Cockerill, 5 Mon., 133. To apply the code to this case will give its provisions a retroactive operation.
    In Walker’s Introduction to American law, page 195, a better definition is given of ex post facto laws. He says, “these have been decided to be retroactive criminal laws, and none other;” referring to the case of Calder vs Bull, supra, he deduces the meaning to be “that men may be benefitted, but shall not be injured by laws which did not exist when the act was done, and therefore we are safe against retroactive criminal laws.” The same author, page 446, treating of crimes and punishments, and the operation of criminal laws under our Constitution, says: “They ¡must be declared before hand; not only must all offences 'be expressly provided for, but the law must be made before the act is done. In other words, there can be no retroactive criminal legislation; and this doctrine prevails throughout the United States; both the Federal and the State Constitutions, as we have seen, prohibit the enactment of ex post facto laws, and by them, as we have seen, are meant retroactive criminal laws-. Any law, therefore, which makes criminal an act Which was innocent at the time of its commission, or which renders conviction more easy than it was when the crime was committed, would be unconstitutional and void.”
    But it is presumed that laws Which favor the offender by diminishing the punishment, or renders conviction more difficult, would be valid, although retroactive, because they operate for the benefit of the accused. Walker refers to the following authorities;
    
      ^ Gilmore vs. Shiita, 1 Levinz 227; Conde vs. Jeffries, 4 Burrows 2460; Cad vs. Hag gen, 8 Mass. Rep. 423; Mash vs. Van Khck, 7 John, 477; Codder vs Bull, 3 Mallas, 386; Fletcher vs. Peck, 6 Cranch 87; McCormack vs. Alexander, 8 Ohio Rep. 65; Ogden vs. Black-ledge, 2 Cranch, 194; Society <fc. vs. Wheeler, 2 Gab lison, 105. A statute will not be allowed to have a retroactive effect unless the terms clearly indicate the Legislature so intended it. (Jarvis vs. Jarvis, 3 Fng. Chancery 462; Head vs. Ward, 1 J. J. Marshall 280.) A State may pass a retroactive law which impairs her own rights. (Mavis vs. Mavis, 4 Watts and Seargt. 401.)
    The Statute of Georgia prescribing the questions to be proposed to the jury on voire dire, was held to be constitutional, (Boone vs. State, 1 Kelly, 618,) but -held not to apply to a case Which arose before the passage of the act. (Reynolds vs. State, 1 Kelly, 222.)
    If the Commonwealth had not the right to challenge jurors, as allowed, the appellant was deprived <of the right to accept and be tried by such as were rejected by the Commonwealth; and it-is not for the Court or the accused to speculate on the chances how those three rejected jurors would have decided, or what would have been the verdict with or without them.
    If the appellant had a constitutional right to be tried by the laws under which he was indicted, and for an act committed during the existence of those laws, and the Code can be construed as applying in any point of view to the case, to his disadvantage, that far the Code is expost facto in its operation, and void.
    The only other question to be noticed on this appeal, is the admission of the dying declarations of Montgomery, the person killed. The English authorities are relied on to prove their admissibility in the courts of this State where they have been admitted. The pactice is not understood to have been uniform in this State; and the admission of such evidence is regarded by the counsel in conflict with that provision of the Constitution, which secures' to the accused the right of meeting the witnesses face to face. This provision was intended to exclude ex parte depositions and examinations before magistrates, and these cannot now be used; but they are much less dangerous than such proof of dying declarations as we have in this case. Such examinations were had in reference to perpetuating in a certain form, under the solemnity of an oath, the whole transaction as it happened, and the party making such declarations made them under a sense of duty, and an obligation to state the truth and the whole truth, understanding the purpose of the examination to be the preservation of his statements for evidence. Here it is evident the wounded man knew nothing of the purpose for which the interrogations were made by Dr. Mills, except to ascertain his position when shot. The wounded man might well have supposed the Doctor’s purpose was merely to ascertain the direction of the ball. These statements of Montgomery, Mills was permitted to detail. Was it Mills’ evidence or Montgomery’s that operated upon the jury? Montgomery’s testimony did the mischief to Walston, not told by himself, but in an impressive form and manner by one who was testifying in truth and with terrible effect for Montgomery, and in a way that Montgomery himself, if he had been present, never could have impressed the jury. It may be said that the other witnesses so far contradicted the declarations of Montgomery, as to the position he occupied when Walston shot, that the effect ought to have been destroyed. The description of Montgomery’s suffering — his conviction that he was about to die — Mrs. Montgomery’s fainting— Mills’ impressing Montgomery with the certainty that he must die — this to let in the statements, and then not only his statements of what was done, but what were his intentions and purposes — all kind and pacific — would weigh before ninety-nine jurors out of every hundred, tenfold more than the statements of witnesses brought face to face with the accused, and subjected to cross-examination.
    If dying declarations are to be allowed in this Commonwealth as testimony, it is to be hoped that the Court of Appeals, in sanctioning it, will so guard the admission, that the injured party in making the declarations, may know that he was interrogated for the purpose of having the whole truth stated. The danger of allowing mere answers to interrogatories, with nothing to show that the declarant understood that he would be expected to state the whole transaction, as it occurred, is too frightfully dangerous for a moment to be tolerated as a fixed legal rule of evidence in a government, the fundamental laws of which provide as a security to the citizen the right of meeting his witnesses face to face, in all criminal accusations preferred against him.
    The admission of this character of proof is a common law rule, and if our constitutional provision was not intended to alter it, then it could only have been intended to prevent .the use of depositions — much less dangerous than dying declarations — as cross-exami'nations could always be had in such cases. Two cases only are found where it has been held that the admission of dying declarations does not conflict with the constitutional provision requiring witnesses to be-brought face to face with the accused. {Anthony vs. The State, 1 Meigs, 268; Wood sides vs. The State, 2 Howard Miss. Rep. ©55; Note to- l Greenleaf, page 207;.-Jb. Sec. 157.)
    
      J. Harlem, Attorney- Generad, for the Cbmmonwelth—
    The Grand Jury for Franklin county, at its July term, 1852, returned an indictment for murder against George W. Walston for having in the month of May, of the same year, shot at and killed Jephtha Montgomery. Á trial was had at the succeeding October term-, and the jury having, disagreed were discharged.
    During the winter following,. Walston obtained a change of the venue to the county of Anderson, and a trial was had in that court at its April term, 1854, and the jury found a verdict for manslaughter, andi fixed the punishment of four years in the penitentiary. The court grafted a new trial on the motions of the prisoner, because of the separation of the jury during the time they had the case under advisement.
    At the last April term another trial was had, and the prisoner- was again found guilty of manslaughter, andi Ms punishment fixed at two year» confinement in-the penitentiary. A motion was made-for a new trial, assigning various grounds therefor, all of which were overruled and judgment rendered according to the verdict of the jury. The Chief Justice having allowed an appeal under the provisions of section 329 of the Criminal Code, the case is-now presented to this court for affirmance, reversal or dismissal
    The Code {section 334) allows an. appeal to the defendant in the following cases::
    
      1. An error of the Circuit Court in admitting or rejecting important evidence.
    2. An error in instructing or refusing to instruct the jury.
    3. An error in failing to arrest the judgment.
    4. An error in allowing or disallowing a peremptory challenge.
    As the grounds for a new trial do not embrace either of the two first, (except perhaps the dying declarations of Montgomery) the case will be considered on the third and fourth.
    1. As to the third. There was no error in overruling the motion in arrest of judgment.
    The causes on which this motion may be grounded, although numerous, are confined to objections which arise upon the face of the record itself, and which make the proceedings apparently erroneous; and, therefore, no defect in evidence or improper conduct on the trial, can be urged in this stage of the proceedings. (4 Burr. 2287; 1 Lord Raym. 231; 1 Salk. 77, 315; Com. Dig. Indictment N.) The cause for an arrest of judgment must appear on the face of the record, and not for any extraneous matter.
    In this case, the indictment, proceedings in court, form of verdict, judgment, &c., appear to be regular and consequently there is no ground to arrest the judgment. The terms “arrest of judgment” are used in the Code of Practice in their legal sense.
    2. The fourth ground is as to the right of the Commonwealth to challenge peremptorily five jurors.
    The right of challenge did not exist when the offense was committed, nor until after two trials of the case; and whether this change in the mode of proceeding impairs, substantially, the constitutional rights of the accused, or should be regarded as a change in the form of trial, is the question to be decided.
    I admit it is a question of much difficulty, and I can find no case directly applicable. It was decided at an early day, by the Supreme Court of the United States, that the words ex post facto applied to criminal cases only. See, Colder and Wife vs. Bull and Wife, 3 Dallas 386. It was decided in that case— 1. That every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action. 2. Every law that aggravates a crime, or makes it greater than it was, when committed. 3. Eveiy law that changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; and 4. Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender — all of these are unjust and oppressive, and come within the interdict of the Constitution against ex post facto laws.
    I find in the United States Digest, annual for 1847, p. 126, sec. 14, the following: “The constitutional provision forbidding ex post facto laws, relates to crimes and punishments and not to criminal proceedings.”
    
      (.Perry’s case, 3 Grattan 632.)
    Is not the question at last, whether the prisoner had the benefit of a fair trial before a jury selected by himself?
    But it is insisted that the act adopting the Criminal Code excludes that part of it which gives to the Commonwealth a peremptory challenge to five jurors. If the Code is to receive that construction, the court must carry it out to its full extent.
    The act adopting the Code provides that all prosecutions that may be commenced hefore the 1st September, 1854, and which, by the existing laws, would be valid, shall not be rendered invalid by this act, “but may be prosecuted to their conclusion and enforced according to the existing laws, as f this act had not been passed.”
    It is submitted then, whether this case throughout should not have been carried on and enforced by the laws in force at the time the offense was committed and the prosecution set on foot ?
    
      It has been argued that the Circuit Court erred in permitting the declarations of Montgomery, given in extremis, to be given in evidence. All I have to say on that point is, that this question has been settled, both by English and American courts in conformity to the ruling of the Circuit Court. (1 Greenleaf Evidence, sections 156, 157, Sfc.)
    
    
      T/iomas F. Marshall, in reply, for the appellant—
    Upon the trial of this cause,believing that the new Code of criminal practice for Kentucky, was intended to apply to it, and that the provision allowing the Commonwealth the right of five peremptory challenges, was not inconsistent with the Constitution of the United States and that of Kentucky, the Circuit Judge permitted the Commonwealth, in the selection of the jury, to reject three without cause, who were otherwise legally unexceptionable, and acceptable to the accused. The appellant assigns this for error :
    1st. Because if the Legislature intended the provision to apply to prosecutions already commenced and pending at the date fixed for the establishment and commencement of the operation of the new Code, which was„the fact in relation to the indictment against jjWalston, then this provision of the Code was ex post facto in its operation upon this case, and therefore unconstitutional and void. The formation of the jury, and the rights of the Commonwealth in its selection, were regulated and to be determined according to the laws existing at the time of the indictment found, which laws confined the Commonwealth to challenges lor cause.
    2nd. If the new Code intended by its own terms or the fair construction of them, to limit the operation of the Code, in the provisions changing the mode of trial under former laws, to such cases as should arise after the date fixed for the operation of the Code by the act prefixed to it, then the court violated the Code itself in allowing the challenges, which, as already shown, were a violation of the laws existing before the establishment of the new Code. It is not intended here to argue the first ground of objection, that the Code, if it was intended by the Legislature to apply to cases commenced before the date fixed for its establishment was ex post facto, and unconstitutional. It is conceived that my colleague, Mr. Lindsey, has exhausted the argument and the authorities. It is upon the use made by the Attorney General, of the second hypothesis, which is the one to which he leans, that my observations are directed. Prom the second section of the act of Assembly preliminary to the Code, that gentleman infers that the entire new Code of Practice in criminal cases in Kentucky, was restrained and confined to cases commenced after the first day of September, 1854, and that cases commenced before that date must be prosecuted to their conclusion, and enforced according to the laws existing at the time of their commencement, as though the act establishing the new Code had not been passed. Now, as appeals were not allowed before the passage of that act, it follows according to the argument of the Attorney General, that Walston’s case being commenced before the first day of September, 1854, must be prosecuted to its conclusion, and the judgment of the Circuit Court enforced according to the laws existing at the time of the passage of the act establishing the Code, which allowed no appeal in indictments for murder. This argument admits. the error of the Circuit Court in trying the cause under the new Code of criminal practice. The Circuit Court committed the error under the impression that if its decision were erroneous, this court had appellate jurisdiction, and could and would correct it. Walston, according to the argument, should have been tried according to the laws existing at the time of the commencement of his prosecution, and was not. He was tried and wrongfully tried under the Code against its provisions. The verdict and judgment were illegal. If the verdict had been “guilty of murder” and the sentence death, it would not have, changed the case or affected the argument. He must have died by an illegal sentence, contrary to the express provisions of the very Code which gives appellate jurisdiction in criminal eases, and specifies as one of the errors of which this court has jurisdiction, and as cause for this reversal of a judgment of conviction, “an error in allowing or disallowing aperemptory challenge.” The Code of Practice is allowed to operate in the Circuit. Court; the illegal destruction of a human being contrary to its spirit, expressed in its letter, by which the codefiers, of whom, the -Attorney Genera! was one, vainly attempted to guard against its unconstitutional ex post facto operation. And its operation is denied in this court, where the jurisdiction given was expressly intended to correct errors of the very sort, charged and admitted. This murderous statute is to operate where it destroys, and to be arrested where its operation would be beneficial to life or liberty.. It is perfectly clear that if the construction given by the Attorney General be the true one, the Circuit Court has erred, and this court, unless its appellate-jurisdiction is taken away by the same construction.,, must reverse the judgment. Admitting that this prosecution should have been conducted to its conclusion, according to the laws existing at its commencement, and that the Code has excepted it from its. provisions, has the section, already referred to, deprived this court, in this case, of the appellate jurisdiction subsequently conferred, and of the judicial; power to remedy an error actually committed by the' Circuit Court, expressly forbidden by the Code itself, and provided for expressly in the fourth specification! of errors, under the title “appeals” as giving jurisdiction to this court, without any reference there, or limitation of the power of this court to arrest the-judgment for such error, to the date of the indictment, ©r commencement of the prosecution? Whatever may have been the laws existing at the time of the commission of the act, the finding of the indictment 0r the commencement of the prosecution, at the time of the trial, the finding of the jury and the judgment of the Circuit Court, this court had then appellate jurisdiction in criminal cases.
    Whatever may be the true construction of the second section of the preliminary act, under whatever law the Code designed “prosecutions or proceedings in criminal cases commenced before the first day of September, 1854, to be conducted to their conclusion,” we deny that the appellate jurisdiction conferred subsequently by the Code is affected in the least or limited by that section. On the contrary, we affirm that the possible errors into which the inferior courts might be led by an improper construction of that section, and the actual error in its construction, into which the Judge of the Anderson Circuit has heen led, as shown and argued by the distinguished Attorney General, one of the authors of the Code, afford, the very strongest ground for maintaining and preserving the appellate jurisdiction over that very class of cases where errors were most likely to be committed. I have shown the inevitable consequences of the Attorney General’s argument in this very case. Befo.re this court will allow such to follow, they will, 1 am sure, give to the section and to the title conferring appellate jurisdiction, ihe most jealous scrutiny; anxious to prevent results scarcely less than iniquitous, results that can with'difficulty be supposed to have been within the views and purposes of a legislature engaged at the very time in the adoption of a statute designed to enlarge the securities of life and liberty, by providing a judicial power of superior revisionjin cases where theretofore ¿he decisions of inferior courts had been final.
    “The Code of Practice, in criminal cases in Kentucky,” is itself an act of assembly, and derives its authority from the sanction of the Legislature. In 'title 9, article Appeals, section 327, it provides that “the Court of Appeals shall have appellate jurisdiction in prosecutions for felonies, subject to the restrictions ^curtained in this article.” By the first section of the preliminary act it is declared “that the provisions of this act shall regulate the proceedings in all proseculions and penal actions in all the courts of this Commonwealth, from and after the first day of July, 1854, and shall be known,” &c. The third section declares “that all laws coming .within the purview of this act shall become repealed when this act goes into effect, except as provided in the last (the second) section.” Now, the act goes into effect the first of July, 1854, and shall regulate the proceedings in all prosecutions, &c., from and after that date without reference to the time of their commencement, so far as the first section is concerned, which fixes the date from which the act is to take effect. By that section the appellate jurisdiction of this court in prosecutions for felonies is established among other provisions of the Code, and- made to commence from the first day of July, 1854. Is that jurisdiction, thus distinctly conferred, and its date thus distinctly fixed, modified or suspended by the second section, so as to defer the time of its commencement till the first of September, 1854, and to limit it to cases commenced after that date? The spirit of the act and the' reason of the thing, I think, has been shown to be against such a construction. The strictest grammatical analysis, the closest and. most literal verbal criticism of the' entire section by itself, without reference'' to anything else, will not sustain, as I think, the construction contended for by the Attorney General so far as the appellate jurisdiction is concerned.
    The language of the section is “That all prosecutions or proceedings in criminal or penal cases which shall be commenced before the first day of September, 1854, and which, by the existing laws, would be valid, shall not be rendered invalid by this act, but maybe prosecuted to their conclusion, and enforced according to the existing laws, as . if this act had not been passed.” The last words which I have italicised, it is contended, taken strictly, leaves the class of cases referred to in the section, as though the Code were not in existence; and without the Code there is no appeal. Walston’s case belongs to that class, clearly, as having been commenced before the first day of September. As to Walston’s case, therefore, there is no Code, it stands as though that act had not been passed. This is the rigorous logic of the Attorney General, thrown into the syllogistic form, regardless of the legal or moral consequences which flow from the conclusion to which it leads. To pursue the phraseology strictly of this second section, and without taking the first into consideration, or seeking to .give it any effect whatever, we say first, that the second section confirms all proceedings in criminal cases commenced before the first day of September, 1854, which, by theenisling laws, would be valid,and none other. Are the proceedings in Walston’s case, to which we object, valid under the laws existing before the establishment of the code? Most clearly not. By these laws no challenges to jurors were allowed the Commonwealth except for cause. “Proceedings commenced before the first day of September, 1854, and which, by the existing laws, would be valid, shall not be rendered invalid by this act, but may be prosecuted to their ■ conclusion, and enforced according to the existing laws, dec.” The proceedings in Walston’s case, if valid under the existing laws, would not, it is admitted by us, have been rendered invalid by the Code, but must have been prosecuted to their conclusion as though the Code had not been passed. The i;ight of appeal under its specifications would not have been taken away, but under such a case the appeal would not have applied; there would have been no error, and this court could not have arrested the judgment. But if the proceedings in Walston’s case had been invalid under the laws existing at the time of their commencement, can any construction of the second section, so often cited, render them valid? Can they be prosecuted to their conclusion, and enforced according to the existing laws, as though the act establishing the Code had not been passed? Does that section provide for the enforcement of proceedings invalid under the existing laws, which were to regulate them? Is not that section confined expressly to proceedings “which by the existing laws would be valid?” Do not all other proceedings come under the appellate jurisdiction conferred upon this court, and made by the first section to commence and take effect from the first day of July, 1854? Again, the language of the second section is not that prosecutions, &c., commenced before the first day of September, shall be, but may be prosecuted to their conclusion, &c. The language is permissive not imperative.
    But, abandoning the narrow field of mere verbal criticism, and admitting that the language of the second section, taken alone, is not impressed with that stamp of indisputable clearness, beyond the reach of cavil or quibble, which the vast, importance of the subject demanded, and which might have been expected from minds so acute as well as enlarged, as are those from which it emanated, let us look to the general objects of the Code, and the Legislature, and to all the sections and provisions bearing on the point under discussion, taking them together, and giving effect if possible to all. In the first place, among other provisions of the Code, appellate jurisdiction in cases of felony, is conferred on this court. In the second place, by the first section of the preliminary act, the Code is made to regulate the proceedings in all prosecutions, “m all the courts” of the Commonwealth,, from and after the first day of July, 1854. From this date then, by that section, the appellate jurisdiction is made to begin, and to regulate the proceedings in all prosecutions, Sfc., without referrence ■ to the date of their commencement. Can this jurisdiction, thus conferred, be interrupted, suspended, or taken away, by any implication, construction, or intendment, unless such purpose be clearly expressed? The second section fixes another date, the first day of September, two months after the Code is to take effect and become law under the first section, and declares that the proceedings commenced before that time, which would be valid under the existing laws, had the Code not passed, should not be rendered invalid by the Code. Is it possible to suppose that the true intention was to suspend the entire Code from the first day of July till the first dajr of September — was it to repeal the first section? In what condition does the argument of the Attorney General leave the first section? Had a prosecution commenced between the first of July, the date fixed for the Code to take effect, and the first of September? Are all the provisions of the Code inapplicable to such a case? Will the appellate jurisdiction not reach errors committed in such a case, errors expressly noted in the code itself as giving jurisdiction; for instance, “an error in allowing or disallowing a peremptory challenge,” an error which by the second section itself, would invalidate the proceedings, being contrary to the laws existing at the time, &c.? Such a construction would nullify the first section altogether. When we show that the appellate jurisdiction existed at the time of this trial, that it commenced on the first of July, 1854, that it was expressly extended to all prosecutions without reference to the date of their commencement, that it is no where expressly suspended in any case, that the error complained of is expressly provided for in the body of the Code, that it is clearly an error under the section providing for the prosecution of cases previously commenced under the laws existing at the time of their commencement, we have placed that construction which makes an error, and by intendment or implication, takes away the power of correcting it judicially; a power expressly given elsewhere, and specifically for the very purpose among others of correcting errors of this precise stamp; we have placed that construction, we think, in that predicamentwhich logicians call a “reductio ad absurdum.” If we are correct, the second section leaves the appellate jurisdiction of this court as the first section left it. It intended principally to guard proceedings previously begun from the ex post facto operation of the Code, and subordinate^ to permit prosecutions instituted and in progress after the first of July, 1854, and before the first of September, when the Code perhaps might not have had sufficient publication and notoriety to have reached all the courts in the Commonwealth; but most certainly never intending to take away from this court a power so necessary to the execution of that very section which declares the proceedings here complained of invalid — the appellate power — without which the proceeding declared and admitted to be invalid by the Code itself, becomes practically valid, and must be enforced in violation of the laws existing at the time of the commencement of the prosecution, and also of the provisions of the second section of the preliminary act, framed by the Legislature to guard the citizen .from this very injustice. A strange anomaly in jurisprudence. Not “a casus omissus,” but a case provided, by which a wrong, an illegal, unconstitutional wrong, a wrong against statute and organic law, provided against by Code and Constitution, is left without judicial remedy. It cannot be. The construction must be false.
    June 29.
   Judge Simpson

delivered the opinion of the Court.

At the July term, 1852, of the Franklin Circuit Court, the appellant was indicted for the murder of Jeptha Montgomery. The prosecution having been transmitted to the Anderson Circuit Court, by change of venue, a trial was there had at the last April term of that court, when he was convicted of voluntary manslaughter, and sentenced to confinement in the penitentiary for the period of two years.

The prisoner has appealed to this court, and the matters relied upon to reverse the judgment, are:

1. The dying declarations of a person who is wounded, is clearly admissible e v i d ence against a person charged with homicide according to the English Common Law, and is not changed by our laws. (Greenleaf 'on Ev., 186.)

2. But to render dying declarations admissible, they must be made in ex-tremis, under a solemn sense of impending dissolution. In such a situation every motive to falsehood is presumed to be silenced and ev’ry motive to truth in lively exercise. Its credibility is, however, to be decided by the jury.

1. That the court improperly admitted the dying declarations of Jeptha Montgomery to be given in evidence against the prisoner.

2. The court erred in not arresting the judgment.

3. The court erred in allowing the Commonwealth the right of peremptory challenge.

4. The court oughtto have granted a new trial for the reasons assigned in the record.

1. The English authorities fullyestablish as a principle of the common law the admissibility of dying declarations as evidence; but it seems to be well settled that they are admissible as such, only in cases of homicide, “where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the dying declarations.” The principle upon which they are admitted, rests upon the ground of public necessity to preserve the lives of the community, by bringing the manslayer to justice. (Greenleaf on Evidence, 186.)

The argument against their admissibility is, that they form a very dangerous description of testimony, made frequently under feelings of revenge, calculated to affect the truth and accuracy of the statements, and that the rule which admits them, not only deprives the accused of the right of cross-examination, but also of the constitutional right “to meet the witnesses face to face,” that are produced against him.

The answer to the objection made to the policy of the rule is that such evidence must, from the necessity of the case, be admitted to identify the accused, and to establish the circumstances from which the death resulted; otherwise, the guilty would frequently escape, where no third person witnessed the transaction, for the want of testimony to designate the perpetrators of the homicide, and to explain the manner in which it occurrred. And as these declarations, to be admissible, must be made in extremis, under a solemn sense of impending dissolution, it is considered that the constant expectation of immediate death will silence every motive to falsehood, remove every feeling of revenge, and the mind will be induced by the most powerful considerations to adhere strictly to the truth; the awful situation of the individual creating, in legal contemplation, an obligation equal to that which is imposed by an oath administered in a court of justice. Besides, after the evidence is admitted, its credibility is entirely within the province of the jury, who have a right to consider all the circumstances under which the declarations were made, and to give the testimony such credit only as upon the whole they may think it deserves.

3. The rule o? law admitting dying declarations to be given in evidence against the accused in .trials for homicide, is not changed by any Constitutional provision of Kentucky— The Constitution does not change the rules of evidence which existed at its adoption, but only secures to the accused the right to confront the witnesses who may be i n t rodueed against him to prove such matters as were, according to the settled principles of law, evidence against him. The law determines the admissibility of testimony. The Constitution secures to the accused the right to confront the witness who details that testimony, face to face. (Wood-sides vs the State Miss. Howard’s Rep., 655; Anthony vs the State 1 Mág’s, 265.)

The constitutional right of the accused to confront the witnesses against him is not impaired by this rule of evidence. The person who testifies to the dying declarations is the witness against the accused; and it is only by failing to discriminate between the witness and the testimony which he gives that the constitutional objection assumes the appearance of plausibility. The Constitution does not alter the rules of evidence, or determine what shall be admissible testimony against the prisoner, but it only secures to him the right to confront the witnesses who may be introduced to prove such matters as, according to the settled principles of law, are evidence against him. This objection, if carried out fully, would result in the rejection of all declarations, even where they constitute part of the res gestes. The law determines the admissibility of testimony — the Constitution secures to the accused the right to meet the witness who deposes face to face. But what, the witness, when thus confronted, shall be allowed to state as evidence, the Constitution does not undertake to prescribe, but leaves it to be regulated by tbe general principles of the law of evidence. When the declarations of the deceased are offered to the jury, they constitute facts in legal contemplation, which tend to establish the truth of the matter to which they relate. The position, therefore, that their admission as evidence infringes upon the constitutional right of the prisoner to confront the witnesses against him; is wholly without foundation, and cannot be maintained.

4. The only-grounds upon which a judgment can be arrested in a criminal case, is that the facts stated in the indictmentdonotconstitate a public offense within the jurisdiction of the Court.— (Criminal Code, sec. 270.)

This constitutional provision has received a similar interpretation in the courts of other States, where it has been decided that it does not abrogate the common law principle, that the declarations in extremis of the murdered person, in such cases, are admissible in evidence. (Woodsides vs. the State, 2 How. Miss, (Rep. 655; Anthony vs. the State, 1 Meigs 265.)

The Circuit Court, therefore, did not err in the admission of this testimony.

2. The matters relied upon in the arrest of judgment were not such as a motion for that purpose can be based upon. It is expressly provided by the criminal code, (sec. 270.) that the only ground upon which a judgment shall he arrested, is that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court. No such cause is alleged to exist in this case, and if such an objection had been relied upon, it would have been wholly without foundation.

3. In considering the right of the Commonwealth to challenge any of the jurors peremptorily, it becomes necessary to decide whether the prosecution in this case, inasmuch as it was pending at the time the Criminal Code was adopted, should be regulated by the provisions of the Code, or by the previous law.

The preliminary provisions contained in the Code, which were intended to fix and determine this matter, are not so clear and explicit as might be desired. They are in the following language:

Sec. 1. “That the provisions of this act shall regulate the proceedings in all prosecutions and penal actions, in all the courts of this Commonwealth, from and after the first day of July, 1854, and shall be known as the Code of Practice in Criminal Cases.”

Sec. 2. “That all prosecutions or proceedings in criminal or penal cases, which shall be commenced before the first day of September, 1854, and which, •by the existing laws,' would be valid, shall not be rendered invalid by this act, but may be prosecuted •to their conclusion, and enforced according to the existing laws, as if this acthad not been passed.”

5. The Criminal Code giviDg the right of peremptory challenge to the C ommonwealth in criminal cases applies as well to trials in prosecutions commenced before, as to those commenced after- the first day of September, 1854. (Criminal Code, sec. 1, 2 and 23, chap. 21, page 191.) This is not an ex post facto law. (Colder, el ux. vs. Butt, et ux. 3 Vallas, 386; 12 Wheaton, 480; 3 Grattan, 632.) The words ex post facto relate to crimes, and not to criminal proceedings.

No express reference is made, in this last section to such prosecutions as were then pending, but they must be regarded as embraced by its provisions, notwithstanding the language used in it seems more properly to apply to such prosecutions as should be subsequently commenced, inasmuch as every reason which would require such an enactment for'the benefit of the latter would apply to the former with equal or greater force. Besides the language used is sufficiently comprehensive to embrace all prosecutions that should be commenced at any tíme before the first day of September, 1854, and we have no doubt the Legislature intended that the provisions of this section should apply to all such prosecutions whether they were commenced before or after the act took effect.

The first one of the foregoing two sections declares expressly that the provisions of the Code shall regulate the proceedings in all prosecutions and penal actions in all the courts of this Commonwealth, from and after the first day of July, 1854. The language is broad and comprehensive; it embraces all prosecutions and all courts. Had it stood alone, no criminal proceeding after the time mentioned could have been regularly carried on, unless it conformed to the provisions of the Code. To guard against any difficulty or inconvenience that might have resulted, if this requisition had remained imperative, in consequence of the ignorance in some portions of the State of the existence of the Code, and the nature of its provisions- — the second section provided that all proceedings in criminal cases, commenced before the period named therein, might be prosecuted to their conclusion according to the existing laws, and should not be thereby rendered invalid. The right to proceed in such cases, under the previous law, is merely permissive; it is not however- exclusive, it does not conflict with the right to apply the provisions of the Code to such proceedings. If prosecuted according to the previous law, they shall not be rendered invalid by the act, although it expressly applies to them, and they may be regulated by its provisions. Such proceedings then may be prosecuted, either under the Criminal Code, or under the previous law, as the court may direct.

This construction of the act is fortified by the consideration that according to its terms it expressly applies to all prosecutions, without regard to the time the offense was committed. Previous offenses are not excluded from its operation, nor is any reference made to the time when the offense was committed. When, therefore, the law evidently embraces offenses theretofore committed, why should it be supposed that the Legislature considered the time when the prosecution was commenced of so much importance as to exempt from the opération of the act such as were commenced before its passage? It would be unreasonable to attribute to the Legislature an intention to attach more importance to the time the prosecution was commenced than to the time the offense was committed. If the Code is to apply to all offenses without reference to the time they were committed, why should it not equally apply to all prosecutions without reference to the time they were commenced? No substantial reason can be assigned, unless it be that its existence might be unknown, and consequently it might- be necessary to provide that if prosecutions were commenced and carried on under the previous law, they should not thereby be rendered invalid. To this extent only was it deemed necessary to exempt such prosecutions from the operation of the act.

This construction of the act seems also to be required by the 23d sec. &f the 21st chap, af the Revised Statutes, page 191, which expressly provides that although a new law shall not be so construed as to affect any right accrued, or claim arising before it takes effect, yet that the proceedings thereafter had shall conform, as far as practicable, to the laws in force at the time of such proceedings.

The Criminal Code was the law in force when the appellant was tried and convicted. The prosecution against him, although commenced before it took effect, was expressly embraced by its provisions, and the statutory rule of construction, to which we have adverted, demanded that the proceedings thereafter had should conform, as far as practicable, to the law in force at the time of such proceedings. The inevitable conclusion then is, that the prosecution in this case might properly have been regulated by, and carried on under the provisions of the Code.

But it is contended that so much of the Criminal Code as gives to the Commonwealth the right of peremptory challenge, a right which did not previously exist, is to that extent, if applied to pending prosecutions for offenses previously committed, an ex post facto law, and therefore unconstitutional.

The Constitution of the United States, as well as that of this State, forbids the Legislature of any State to pass ex post facto laws. The Supreme Court of the United States, in the case of Calder and ux. vs. Bull andux., 3 Dallas, 386, has given an exposition of the clause in the Constitution of the United States which contains this prohibition; and Judge Chase mentions four kinds of laws which, in his opinion, would be embraced by it.

1. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action.

2. Every law that aggravates a crime, or malees it greater than it was when committed.

3. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed.

4. Every law that alters the legal rules of evidence, and receives less or different testimony than the law required, at the time of the commission of the offense, in order to convict the offender.

The same Judge says that he does not consider any law ex post facto but those only that create or aggravate the ci’ime, or increase the punishment, or change the rules of evidence for the purpose of conviction.

We have not been referred to any authority by which this constitutional prohibition has been extended beyond the limits thus prescribed; nor any that has considered it as applicable to laws merely regulating criminal proceedings, or the mode of trial in criminal cases.

In what manner is the prisoner affected by the exercise of the right of peremptory challenge, on the part of the Commonwealth? It does not divest him of any right; although it may in its operation exclude from the panel some individual that he might desire to have upon the jury. It does not interfere with his right of peremptory challenge. An impartial jury is all that he is entitled to under the Constitution. It has no tendency to deprive him of this right. He cannot claim the right to be tried by a partial jury— one that may be inclined to favor his escape from justice. He has no right to select a jury, although the law permits him, to a limited extent, to reject such persons as he is unwilling to be tried by.

In the case of the United States vs. Marchant and Colson, 12 Wheaton's Reports, 480, the Supreme Court decided, that where two or more persons are jointly charged in the same indictment with a capital offense, they have no right to demand a separate trial. The claim to a separate trial was based upon the ground that they had a right to select a jury out of the whole panel, and that as upon a joint trial, one might desire to retain a juror who was challenged by the other, this right of selection was, upon such a trial, virtually impaired; butthe court decided that the right of peremptory challenge was not a right to select, hut a right to reject jurors. It enabled the prisoner to say who should not try him, but not to say who should be the particular jurors to try him. It gave him the privilege of exclusion, but not of selection.

And the Supreme Court of Virginia, in the case of Pary vs. Commonwealth, 3 Grattan's Rep. 632, decided that an act of the Legislature which directed that thereafter in all prosecutions for offenses punishable by death or confinement in the penitentiary, the venire Jadas should command the sheriff or other officer charged with its execution, to summon twenty-four freeholders of his bailwick, residing remote from the place where the offense was supposed to have been committed, prescribed a new mode of selecting a jury, and reduced the number of peremptory challenges on the part of the prisoner, was not unconstitutional, although the act embraced prosecutions pending at the time of its passage.^

The court in this last case held that the words ex post facto, used in the Constitution, relate to crimes, and not to criminal proceedings; and that lessening the number of peremptory challenges did not deprive the prisoner of the right of being tried by the same law and the same rules of evidence that were in force at the time the offense was committed; and therefore the law was not unconstitutional.

If then a law that diminishes the number of peremptory challenges, to which the prisoner was previously entitled, is not an ex post facto law, it will hardly be contended that a law which declares that the Commonwealth shall be entitled to five peremptory challenges in prosecutions for felony, is of that character, and therefore unconstitutional. Conferring the latter privilege is evidently less disadvantageous to the prisoner than the deprivation of the former. It is a privilege too that leaves him the full exercise of his right to exclude from the jury such persons as may be objectionable to him.

Considering the nature and object of the prisoner’s right of peremptory challenge, as well as the object and effect of the law in conferring a similar right (to a limited extent) upon the Commonwealth, it seems to us that the legitimate exercise of the former is not in any degree affected or impaired by the exercise of the latter; and that the only effector tendency of the exercise of the latter right is to procure an impartial jury to pass upon the guilt or innocence of the prisoner. Our conclusion then is, that the section of the Criminal Code which allows to the Commonwealth five peremptory challenges in prosecutions for felony, pending at the time- of its passage, is not an ex post facto law, nor otherwise unconstitutional.

The court therefore did not err in permitting the Commonwealth to exercise the right of peremptory challenge.

4. The error of the Circuit Court, if one was committed by it, in overruling the motion for a new trial, is not one of the errors for whieh, according to the 334th section of the Criminal Code, a judgment of conviction can be reversed. Upon a motion of this kind the action of the Circuit Court is final.

There does not, therefore, appear to be any error on the record to the prejudice of the appellant, -which will authorize a reversal of the judgment against him. And we would here remark that if the case was not embraced by the Criminal Code, and the proceedings therein should have been governed by the previous law, then, as this court had no appellate jurisdiction in such a case, under that law, the appeal could not have been maintained, nor the judgment been reversed by this court.

Wherefore, the judgment of the Circuit Court is affirmed.  