
    Joseph Thomas and Pendleton Thomas v. The State.
    The criminal court organized by the act of 1836, is an inferior court and authorized by the constitution.
    Since the act of 1836, no challenge to the array will be allowed, nor any venire facias quashed, except for corruption in the officer who may summon the jury.
    Where a judge had been engaged as counsel for the prosecution, and the prisoner was tried and convicted, before sentence was pronounced, it was held that he was not incompetent to set in the case and pronounce sentence.
    The plea of non-identity which is plead ore tenus, is never allowed except in cases where the prisoner has escaped after verdict and' before judgment, or after judgment and before execution. On review, to render the plea valid, the record must show an escape.
    Burglary must be committed in the night time; whether it is or not light enough to distinguish a man’s face, is not material to the offence.
    The caption of the indictment must state with sufficient certainty, the style of the court, the judge presiding, the place at which the indictment was found, and the jurors by whom it was found.
    Where punishment is graduated according to the degrees of the crime, the verdict must find the degree of the offence, or no judgment can be pronounced.
    IN error from the criminal court of the county of Adams.
    At the December term, 1837, of the criminal court of- Adams county, an indictment for burglary was taken against the plaintiffs in error. On their. application the venue was changed to the county of Jefferson, and at the June term,. 1838, of the criminal court of that county, they were tried and found guilty. The judge respited the sentence — and at the December term following, when the prisoners were brought to the bar of the court and asked what they had to say why judgment should not be given against them, they tendered a -plea denying their identity, on which issue was finally taken by the state. Several fruitless efforts were made-to procure a jury to try this question, and the cause was continued until the succeeding term. The judge then treated the plea as a nullity, and passed the usual sentence of death against the prisoners.
    Many errors were assigned, but it is not deemed necessary to state any except those pertinent to the opinion. 1st. It was objected that the criminal court which tried the prisoners, had no jurisdiction. It was contended that the legislature had no authority to establish it, and therefore all things transacted in it were void. This court was created by an act of the legislature which was approved in 1836, and was extended to the counties of Warren, Claiborne, Jefferson, Adams and Wilkinson. The 8th section provides that said court shall have in each of the counties before enumerated, cognizance and jurisdiction concurrent with the circuit courts of said counties, over all crimes, misdemeanors and offences; and that it shall proceed in all respects in the same manner that the circuit courts do'. The first section of the fourth article of the constitution declares that “ the judicial power of this state shall be vested in one High Court of Errors and Appeals, and such other courts of law and equity as are hereinafter provided for in this constitution.” The 24th section of the same article provides that “the legislature may from time to time establish such other inferior courts as may be'deemed necessary, and abolish the same whenever they shall deem it expedient.” The statute which established the criminal court proceeded under the authority delegated to the legislature by the last mentioned provision of the constitution.
    2d. The second error assigned was that the court refused to set aside the special venire facias issued from Jefferson county. The objection was to the form of the process. There was no objection to the sheriff, nor any charge against him of improper conduct, according to the act of 1836.
    3d. The next error assigned was that the judge refused the exception which was taken to him on the ground of interest. He had previously while engaged in the'practice of the law, been consulted and retained as counsel for the state by the prosecutor; but the trial and conviction were had before he came 'upon the bench.
    4th. It was also assigned for error that the court refused to allow the written plea of non-identity, which was tendered by the prisoners when they were brought up for sentence, and asked what they had to say, why the sentence of law should not be pronounced. Neither the plea nor the record showed an escape.
    
      5th. It was further assigned that the court when asked by the prisoner, refused to instruct the jury “that if at the time of committing the burglary laid in the indictment, there was light enough to discern a man’s face, it was not burglary,” which charge the court refused.
    6th. Assignment was that the record, or caption of the indictment did not- state by what judge, or at what place in Adams county the court was holden at which the indictment was found, nor by what jurors, nor by what number it was found.
    The caption of the indictment, after giving the style of the court and the term, stated, “the grand jury came into court and presented the following bill of indictment, and say they are content that the court shall alter therein any thing, the same being-matter of form and not of substance.” This was all that appeared in the record upon that matter.
    The act of 1839, which was in force when the indictment was rendered in the court below, altered the penalty of the offence of burglary, and instead), of capital punishment, substituted confinement in the penitentiary for a longer or shorter time, according to the degree) fixing three degrees of the offence. The verdict in this .case did not find the degree o'f the prisoner’s guilt.
    Baker for plaintiffs in error..
    In this case the first error assigned is the unconstitutionality of the act organizing the court below. By the 1st section of the 4th article of the constitution, it is declared, “.that the judicial power of this state shall be vested in one High Court of Errors and Appeals, and such other courts of law and equity as are hereafter provided for in this constitution.”
    Section-13th of the same article then provides that “the state shall be divided into convenient districts, and each district shall ■contain not’less than three nor more than twelve counties,” the term district being used synonomously with circuit.
    Section 14th then provides that “ the circuit court shall have original jurisdiction in all matters, civil and criminal, within this state; but in civil cases only when the principal of the sum in controversy exceeds fifty dollars.”
    Section 16th provides for the establishment of a “ Court of Chancery,” section 18th for a “ Court of Probates,” and section 23d for the appointment of “ Justices of the Peace,” &c. each of which tribunals has exclusive original jurisdiction in all matters confided to it, except that the legislature may give equity jurisdiction to the circuit courts in certain cases.
    By the 24th section it is declared, that “ the legislature may from time to time establish such other inferior courts as may be deemed necessary.” By virtue of this section, it is presumed the legislature conceived it had the power to establish the criminal court of the counties of Warren and Claiborne. Now the constitutionality of this court, it is believed, depends upon the question whether it is or is not, in the sense contemplated by the framers of the constitution, an inferior court.
    It is true, that by the 1st section of the act of 1836, it is styled an “ inferior court of criminal jurisdiction;” but the mere fact of its being so styled in the act of its creation, does not make.it in fact an inferior court. To determine its grade and dignity, we must resort to the matters over which it has jurisdiction. By the 8th section (see act, .1836, page 27,) it is invested with jurisdiction concurrent with the circuit court in ail matters of a criminal nature, and thus becomes ■ co-ordinate and co-equal in its powers over all matters confided to its jurisdiction, with the circuit court, and cannot, therefore, be said to be inferior to it. The mere fact of its being limited in jurisdiction to a certain portion of the matters confided by the constitution to the circuit courts, does not per se render it inferior. If an appeal lay from the criminal court to the circuit court, then it is admitted that the former would be inferior to the latter, the power of revisa! and correction being the true and just test of superiority. But such is not the case. An appeal lies alike from both these courts to the High Court of Errors and Appeals, they having concurrent jurisdiction over the same criminal matters, and their decisions being alike subject to revisal and correction b]'- this court.
    If limitation of jurisdiction were to be considered the true test of inferiority, then, by virtue of the 24th section of the 4th article of the constitution, it would be competent for the legislature to establish in the same counties embraced within the criminal circuit, an inferior court of civil jurisdiction, limiting its powers to matters exclusively civil; and it would be equally competent to go a step further and establish within the same counties an inferior court of both civil and criminal jurisdiction, excluding from- its jurisdiction a single subject matter confided by the constitution to the circuit courts, for instance, the power to try real actions.
    And the same rule of reasoning would apply under a similar construction of that section, to the Supreme Court of Chancery, and in fact to every court of original jurisdiction known to the constitution, however limited. The correlative of the term inferior, is superior, and if the clause in the constitution, “ such other inferior courts,” refer to and embrace the circuit courts, it equally refers to and embraces the Superior Court of Chancery, Probate Courts, &c. and under such a construction, each distinct jurisdiction might be apportioned out to an infinite number of tribunals each, by limiting its jurisdiction, being rendered inferior to the others. Such a state of things, it is believed, was never contemplated by the framers of the constitution.
    In England the superiority of the courts is tested by the power of revisal and correction. The King’s Bench has jurisdiction in all matters of crime, and such as relate to the crown, (except the revenue,) and all personal actions whatever. The Common Pleas, in all actions between subject and subject; and the Exchequer, in ail matters relating to the revenue. See Stiphen on Pleading, 4 and 5.
    Each of these courts is styled superior, and yet the King’s Bench is the highest; an appeal lying to it from the Common Pleas, and in a variety of instances from the Exchequer. 3 Black. Com. 40, 48.
    3d. The record should show the names of the grand jurors, and that the indictment was found by at least twelve men. 1 Chitty’s Crim. Law, 333 — 2. Piale, 167. Cro. Eliz. 654. 1 Chit. C. L. 202. Peck’s Rep. 166, 140. The record should show the return of the venire facias. Peck, 166, 140. The record should show that grand jurors were sworn then and there. 3 John’s. Cases, 265. The record should show that a Foreman was sworn and that the bill was returned by him, or else by the whole grand jury, with their return- specially endorsed thereon. 3 Plow. 29. 1 How. 254. 1 Chit. 313. Com. Dig. 4, 643, 644, 645. 1 Chit. 330. The record should show the place as well as county where court. 3 How. 430.
    3d. The court should have quashed the special venire facias issued in Jefferson county. 18 John’s. Reps. 212.
    Our circuit courts are courts of oyer and terminer, and no issue of fact can be tried before them without a precept to summon a jury, which precept should be good in form and substance, and returned duly executed. 1 Chit. Com. Law, 508, 509. 2 Hale, 260, 261. 3 Bacon, 730.
    4th. The indictment ought to, have been signed by the District Attorney of the 1st Judicial District. (John D. Freeman.) 1 How. 250. 3 Haywood, 98. Acts 1833, p. 88.
    4th. The court ought to have given the instructions asked for by prisoner’s counsel. In the crime of burglary, time is of the essence of the offence; it must be alledged to have been committed in the night time, and so'proved by the prosecution. If there had been light enough to discern a man’s face, it would not have constituted burglary. It was, therefore, the duty of the court, when requested by counsel, to instruct the jury that the state was bound to prove, affirmatively, that there was not at the time light enough to discern a man’s face to make out the charge in the indictment. 1 Chit. 219, 293. 1 Hale, 549, 550. 10 Petersdorf, 504, 505. 4 Black. Com. 224. 4 Petersdorf, 744.
    6th. and 7th. Record shows that the prisoners were arraigned in Jefferson county, and that they were at all times in court during progress of trial.
    8th. It was not competent for the Judge presiding, (the-Hon. C. Rawlings, he not being in commission nor presiding at the trial before the jury at the preceding term,) to pronounce judgment on the prisoners at a subsequent term. He could not judicially know that they were the same persons supposed to have been convicted at the previous term.’ See 2 Hale, 401, 402, 403, 406, 407, and note (C.) The prisoners had been respited at June term, 1838, by Judge Thatcher, (then presiding,) upon doubts of the law and the regularity of the conviction. Under the humanity of the law those doubts ought to be viewed and interpreted in the most favorable light to the prisoners. The presumption is, that if Judge Thatcher was now in commission as judge of said court, those very doubts would induce him to arrest the judgment and grant a new trial. Shall the prisoners, then, be executed under these suspicious circumstances, because a subsequent judge, coming into office during the, reprieve, may, and indeed can know nothing of the causes of the reprieve ? Law, justice, humanity, the genius of our institutions, ali forbid it. 3 Hale, 404, S, 6, 7.
    9th. The Hon. C. Rawlings, having, previous to his election to the office of Judge of said court, been consulted and retained as counsel by the prosechtor in the case against the prisoners, became interested in the prosecution, and thereby legally disqualified to preside in said case. The act of December 35th, 1833, after pointing out the duty of Judges in cases pending before them, wherein they were “ interested as counsel or otherwise,” declares that “ if any Judge shall try any cause in which he may be in any manner interested, without the consent of the parties, he shall be deemed guilty of a high misdemeanor in office, and shall be liable to impeachment therefor.” Acts 1833, Dec. Sess. p. 31, 33.
    10th. The prisoners should have been permitted by the court to plead their non-identity. See 1 Chitty C. L. 777, 443. 3 Burrows, 1810. 3 Hale, 407. If one, convicted, escapes before judgment pronounced, and is retaken, he may deny his identity and it shall be tried. Id. For otherwise an innocent person might be executed. And it was the more necessary in this case that the plea should have been allowed, and the fact tried by a jury, because the judge pronouncing the judgment, not having presided at the trial before the jury, could not know with legal certainty that the prisoners were the persons supposed by the record to stand convicted.
    11th. The prisoners had a right to move the court for a new trial, and in arrest of judgment; and the refusal of the court to entertain said motions, was a violation of that right. The court is required by law to ask the prisoners, before passing sentence on them, what they have to say why judgment should not be pronounced upon them ? 1 Chitty C. L. 700, and upon being so asked he may plead his non-identity or any other matter in arrest of judgment, as a pardon, &c. Id. 3 Salkeld, 358. It would be worse than an absurdity if the court were compelled to ask the question, and had the power to refuse to have it answered.
    12th and 13th. The act of 1839, page 194, applies to the case of the prisoners.
    Collins, Attorney General, contra.
    
    It was competent for the legislature to create a criminal court. See constitution, article 4, section, 24. The plea of not guilty admits the jurisdiction of the court. See Chitty’s Criminal Law. Though the caption of a record be incomplete, the record will be adjudged sufficient if it appear in other parts of the same to contain the matter usually stated in the captions. That which is uncertain in one part, may be rendered certain by that part which is clear in another. See Howard’s Rep. 3d vol. p. 429.
    A venire facias can in no case be quashed, except for partiality or corruption in the officer summoning the same. See Republished Statutes of Mississippi, page 578.
    The law prohibiting judges of the circuit courts from presiding in a cause in which they were interested as counsel, does not apply to judges of the criminal court. There is no other judge with whom the judge of the criminal court could interchange. See Condensed Statutes of Mississippi, pages 548-9, that statute which prohibits the judges of criminal courts from presiding, &c. is only directory — if they violate it, it is an offence for which they are responsible before the proper tribunal. It is not an error which can be made available to the prisoner in this court.
    The plea of non-identity will not be regarded by the court, unless the record and plea show that the prisoner was out of custody between the time of conviction and the pronouncing of judgment; for unless he has escaped after conviction, the law presumes him all the time in the custody of the court, by means of its officer. See Chitty’s Criminal Pleading, 1st vol. p. 776. 3 Burr. 1810. 1 Hale, 368. 1 Blackstone’s Reports 4, Foster, 40.
    When the venue has been changed, the clerk of the court from which the case has been changed, must send only the original papers, and a writ of error to the county in which the case was tried, will not reach an error in the proceedings in the county from which the case was changed. "Byrd v. The State, 1 Howard, 248.
    If after verdict the prisoner escape and be retaken, he may be brought into court at a subsequent term, and the sentence of the law pronounced uponhim. Woodsides v. The State, 2 How. 666.
   Mr. Justice Trotteh

stated the case and delivered the opinion of the court.

The statute óf 1836 regards the criminal court as an inferior court, and so designates it. it makes it an inferior to the circuit court by conferring upon the latter the authority to bring the record of any prosecution pending in the former, before them by a writ of certiorari whenever it is made to appear that injustice is likely to be done in the criminal court, and the circuit court upon the removal of the record into it, is vested with full power to hear and determine the cause. The circuit courts are thus invested with full supervisory and controlling power over this court, and is thus superior to it, according to the rule insisted on by the counsel for the prisoners. But the criminal court is inferior in point of jurisdiction in another sense, and in the sense of the constitution, as we think. It is a tribunal of limited jurisdiction, its powers being confined exclusively to criminal proceedings. It has no civil jurisdiction, and is therefore inferior to the circuit courts. It is inferior to the High Court of Errors and Appeals, because a writ of error lies directly to it from the appellate court. In this point of view the circuit courts are also inferior, and are so termed in the constitution. It is not essential in order to sustain the authority of the legislature to. create this court, to consider it inferior in relation to the circuit courts, or to any other court created by the constitution save that of the court of errors and appeals. For we apprehend that the power to establish and to abolish “ all such inferior courts” as the legislature may deem necessaiy, is unlimited, save by the enumeration which the constitution itself has made of particular courts. .Such as are included in the enumeration, are of course beyond the reach of legislative control. Beyond the enumeration, the power is plenary, to create as many jurisdictions inferior to the court of errors and appeals as may be deemed exnedient. The constitution of 1817 vested the judicial power of the state in one supreme court, and such other inferior courts of law and equity as the legislature should from time to • time establish; The legislature afterwards created a chancery court, and also a court of probates; The powei’ to establish the.orphan’s and probates court under the old constitution, was never doubted, notwithstanding it Was vested with a very large portion of the mass of powers confessedly cognizable in a court' of chancery, It was inferior to the court of chancery. It was inferior-to the court of chancery in the amount of its jurisdiction, and.because that court possessed the p'ower to revise its decrees; and it was inferior in its. relation to the supreme court. It was therefore one of the inferior courts authorized by the constitution. The new constitution of 1832, has by express enactment established the probate court, and defined its¡ jurisdiction. Yet it will scarcely be insisted, if is presumed, that if it had not done so, that the hands of the legislature would be tied up against its creation. And yet in regard to many subjects of its jurisdiction, it bears the samé relationf o .the chancery court, which the criminal court does to the circuit courts. We are therefore clearly of Opinion that this is fairly embraced in the provision of 24th section of the 4th article of the constitution, and is a constitutional court.

2. It is next assigned for error, that the court below refused to set aside the special venire facias which-issued from the criminal court of Jefferson county. The first section of the act of 1836, entitled- an act to amend the jury laws of this, state, “ enacts that no challenge to the array shall be sustained,.nor shall any venire facias be quashed by any court of justice in this state for any cause whatsoever, except for corruption in the officer who may summon the jury. But there was no objection made to the sheriff,, nor any improper conduct charged against him. The objection was merely to the form of the process, and was therefore properly disregarded. '

3d.. The next error which we deem proper to be noticed, is the refusal of the judge who presided on the trial of this prosecution, to notice the exception which was taken to him on 'the ground of interest. He had previously, and whilst engagéd in the practice of the law, been consulted and retained as counsel for the state by the prosecutor. The trial aud conviction were had before he came upon the bench, and he did not consider himself precluded either by law or official delicacy from pronouncing the mere judgment of the law. Whatever might have been the more discreet course for the judge to pursue in these circumstances, or whether the reasons which influenced him were good, we are not required to decide. It is very clear that it was a question of discretion which belonged to him, and for the exercise of which his course is not subject to review in this court. We recognize the soundness and utility of the maxim, that a judge should never sit to hear any cause when he is interested, nor when from any,other circumstances his mind may likely have received any bias or prejudice for or against either party. And we may be indulged to remark, that a judge should never act when there can be any just ground to impute partiality or prepossessions either way. For as was very justly remarked by the judge who delivered the opinion of the court in the case of Lyon v. The State Bank, reported in 1 Stewart’s Ala. Rep. 464, where the same question was before the court, “ The spirit of the law, the dignity of the state, and the reputation of the judiciary demand purity in the arbiters, and impartiality in the administration of justice.” It was in view, no doubt, of these considerations, that the statute law of this state has prohibited the judges from deciding causes in which they may have previously been interested as counsel. But sensibly as we may feel the influence of these reflections, and much as we may deplore the example, if it shall ever be set up, of a judge rvho will boldly venture to sit in judgment upon the life, the liberty or the property of the citizen, in circumstances calculated to create an interest deeper than that which arises out of a sense of the duty and responsibility of his station, we, yet, have no power to interpose. Redress by the party injured, can only be had in other forums, and the evil whenever it shall happen, can only be cured by an application of the powers of the other departments of the government. It is highly probable, in this case, that the judge did not conceive that there was any scope for the exercise of any power in which his discretion as a judicial officer was involved. But be this as it may, his judgment cannot for that reason be reversed. For it is well settled, that a “judge shall not be excepted against or challenged or have an' action brought against him for what he does as1 j udge.” 1 Inst. 94. The supreme court of Alabama held this principle in the case before- noticed of Lyon v. The Bank. The action was brought in the county court by the Bank, and the judge who tried, the cause then was -one of the directors of the Bank. The defendant challenged him-on the ground of interest, but he refused to notice the objection and gave a judgment for the Bank. This was assigned as error on an appeal to the supreme court, but it >vas riot sustained. And there is a very obvious reason given for it. There is no tribunal adequate to decide a challenge to the judge when mhde in his own court..

4th. The next error we shall notice,'is the conduct of the judge in refusing to allow the plea of non-identity. The correctness of this assignment of error depends upon the goodness of the plea. This plea, which • in practice, is interposed ore tenus at the bar of the court, is never allowed except in cases where the prisoner has escaped after verdict and before judgment, or after judgment and before execution. In this case it should not ’have been received, because the record does' not show any escape. The prisoners were constantly in custody. It was therefore properly treated as a nullity. 1. Chit. Cr. L. 776. 3 Burr, 1870.

5th. The next assignment of error in the order we choose to consider them, is. the refusal of the , court below to instruct the jury as .asked by-the prisoner," “that if at the time of committing the burglary laid in the indictment there was light enough to discern a man’s face, it was not burglary.” The only question in regard to time in prosecutions for this crime, is whether it was committed in the night time. The instruction asked does not present that question. The light of the moon may sometimes be ‘sufficiently brilliant even at the still hour of midnight, to enable a man to discern another’s face and to recognize his features. The instruction was properly refused.

6th. It is next assigned as error, that the record or caption of the indictment does not state by what judge, or at what place in Adams county the court was holden at which the indictment was found, nor by what jurors, or by what number of jurors it was returned. The caption, after giving the style of the court, and the term, proceeds to state that “the grand jury came into court and presented the following bill of indictment, and say they are content that the court shall alter therein any thing, the same being matter of form and not of substance.” And then it terminates nor does the record in any other part of it, show of what number the grand jury consisted, or who they were, or how they were brought into court. It is the business of the caption of an indictment to state with sufficient certainty not only the style of the court, the judge then presiding, but the time and place when and where it was found and the jurors by whom it was found. 1 Chit. Cr. L. 326. 2 Hawk. 346. There is wanting, in this record, a statement of the facts essential to confer jurisdiction upon the court below. And little as we feel disposed to entertain objections to form, yet we feel constrained in cases, highly penal like this, to insist upon the observance of those rules which the constitutional law of the state has prescribed. No court is authorized to put the most humble citizen upon his trial for any capital or infamous crime, until a grand jury of the proper county, organized as the law directs, has preferred a formal accusation against him. Does the record in the Jefferson criminal court inform that court that these prisoners had been thus accused? It does not. ■ And we therefore conclude that the indictment is bad for that reason. There are some errors assigned which we do not deem it necessary to notice. It is proper for us however to observe, that the judgment must be reversed on another ground. The. act of 1S39, which was in force when the judgment was rendered m the court below, alters the penalty of this offence, and for the capital punishment under the old law, substitutes confinement in the penitentiary of the state for a longer or shorter period, according to the degree in which it has been committed. The statute defines three degrees of this crime, by particularly declaring the circumstances which constitute either the one or the other, and before any judgment can be pronounced, it must be ascertained by verdict in which of these degrees, the defendants are guilty. The judgment must be reversed, and the prisoners remanded for further proceeding.  