Judge Simpson
delivered the opinion of the court:
John and Joshua Adwell were jointly indicted in the Barren circuit court, for the murder of Redford T. Bailey, and having claimed separate trials, John Adwell. was tried and fqund guilty. The court below overruled a motion for a new trial, and the prisoner has appealed to this court.
In the grounds filed, upon which the motion for a new trial was based, the following objections were made to the action of the court upon the trial, to-wit:
1st. “ That the court erred in permitting Mrs. Bailey to give in evidence to the jury the declarations of Redford T. Bailey.
2d. “ That the court erred in refusing to permit Joshua Adwell to be sworn and to testify as a witness for the accused.”
The bill of exceptions contains the evidence given by Mrs. Bailey upon the trial, but it does not state that it was objected to on the part of the accused. Nor is it stated therein that Joshua Adwell was offered as a witness on the trial, and rejected by the court. That such questions were made and decided by the court does not appear by any part of the record, except in the grounds filed for a new trial. The bill of exceptions states that the motion for a new trial, upon the grounds filed, was overruled ; but whether the motion was overruled because the grounds filed did not contain a correct statement of what occurred upon the trial, or for some other reason, does not appear.
The party making a motion fora new trial can file any grounds he thinks proper. When filed, they show merely upon what he relies to sustain his motion; they do not prove that the' matters which are therein set forth, and relied upon, are true. If such matters relate to the proceedings upon the trial, the decision of the court, which is alledged to be erroneous, should be stated in the bill of exceptions, as well as the fact that it was excepted to at the time [317]*317it was given. The reasons assigned for a new trial cannot, therefore, be regarded as evidence of the action of the court upon the trial.
2. The court of appeals has no power to reverse judgment of a circuit court in a criminal case that unless for an error of that court upon questions of law decided the progress of the trial, and appearing on the record by bill of excephons prepared as provided for in the Code of cases (See Crim. Code, sec. 277.)
A judgment of conviction may be reversed for an error of the circuit court in admitting or rejecting important evidence, but such error must appear on the record.. {Sec. 334, Criminal Code.) The record in this case does not show that the testimony of Mrs. Bailey was objected to If admitted without objection, its admissibility was not passed upon by the court, and therefore it cannot be said, with any propriety, that the pourt erred in admitting it. Its admission under such circumstances would be the act of the parties and not the act of the court.
The evidence of Mrs. Bailey consisted of the statements of the deceased, as to the manner, and the persons by whom, the injury he sustained had been inflicted. The witness proved the deceased stated in the same conversation, “that he was ruined and a dead man, unless he got speedy relief.” She also _ , , , . . . . . . proved that he was very bloody, and became insensible in about twenty minutes after he had made his, statement, and remained in that condition until he ,. , • died. .
We are inclined to the opinion, from the expressions used by the deceased, that he did not feel that certainty of his approaching dissolution which the law treats as equivalent to the solemn sanction of an oath, and regardssas indispensable to make dying declarations admissible as evidence. But as all the facts stated by him were more fully proved by the other testimony in the cause, and it does not appear that his dying declarations, when deposed to by Mrs. Bailey, were objected to as evidence, and no reasonable doubt of the guilt of the accused, could arise, even if her evidence were excluded; there does not seem to be any good reason why this court should indulge the supposition,, that this evidence had been objected to when the fact does not so appear on the record. And if it were not objected to on the trial, [318]*318nor any motion made to exclude it, its competency cannot be inquired into by this court, whose revisory jurisdiction in criminal cases is restricted to errors of law, committed by the circuit court in the progress of the trial, and appearing on the record by a bill of exceptions, prepared as provided in the Code of Practice in civil cases. (Sec. 277, Criminal Code)
3. The common rule of evidence in criminal cases is, that when several persons are jointly indicted, one is not a competent witness for the other. (12 Hom’d, 361; 1 Phillips’ Ev. 74, Sfc.)
4. By our Criminal Code, (sec. 232,) the court may permit one jointly indicted, where there is no su ffieient proof against him to put him on his defense, at the instance of the other party indicted, to order his discharge, and permit such person to testify in behalf of such other person.
[318]*318If Joshua Adwell were a competent witness, as his testimony might have had an important bearing upon the decision of the question of the guilt or innocence of the accused, we should feel a very great reluctance, in a case like this, to permit an omission in the record, that may have been occasioned by the mere oversight of counsel, so to operate as to deprive the accused of the benefit of this testimony. But we are satisfied that the decision was correct, if as alledged, the court did refuse to permit this witness to testify for the accused.
According to the common law rule of evidence, where several persons are jointly indicted, one is not a competent witness for the other, even where they are tried separately. (United States vs. Reed and Clements, 12 Howard, 361; Wharton’s Amer, Crim. Law, 367; 1 Phil. Ev., 74.
There has been very little conflict in the decisions of the state courts on this question, but where the common law doctrine on the subject has not been changed by statute, the decisions are nearly unanimous in adopting the rule that regards such testimony as incompetent. (The people vs. Bill, 10 Johnson’s Reports, 95 ; the people vs. Williams, 19 Wendell, 377; Campbell vs. Conn, 2 Virg. Cas., 314; the State vs. Alexander, 2 Rep. Const. Ct. So. Ca., 171; Pennsylvania vs. Leach, Addis., 352; State vs. Blannerhassett, Walker’s Rep., 7, 16, 17; State vs. Mills, 2 Dev., 420; State vs. Smith, 2 Iredell, 402; Commonweatth vs. Marsh and Barton, 10 Pick., 57.
The existence of this rule of evidence is evidently recognized by the Criminal Code of this state. By section 232 it is provided that where two or more [319]*319persons are included in the same indictment, and the court is of opinion that the evidence in regard to a particular individual is not sufficient to put him on his defense, it must, on the motion of either party desiring to use such defendant as a witness, order him to be discharged from the indictment, and permit him to be examined as a witness.
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Judge Simpson
delivered the opinion of the court:
John and Joshua Adwell were jointly indicted in the Barren circuit court, for the murder of Redford T. Bailey, and having claimed separate trials, John Adwell. was tried and fqund guilty. The court below overruled a motion for a new trial, and the prisoner has appealed to this court.
In the grounds filed, upon which the motion for a new trial was based, the following objections were made to the action of the court upon the trial, to-wit:
1st. “ That the court erred in permitting Mrs. Bailey to give in evidence to the jury the declarations of Redford T. Bailey.
2d. “ That the court erred in refusing to permit Joshua Adwell to be sworn and to testify as a witness for the accused.”
The bill of exceptions contains the evidence given by Mrs. Bailey upon the trial, but it does not state that it was objected to on the part of the accused. Nor is it stated therein that Joshua Adwell was offered as a witness on the trial, and rejected by the court. That such questions were made and decided by the court does not appear by any part of the record, except in the grounds filed for a new trial. The bill of exceptions states that the motion for a new trial, upon the grounds filed, was overruled ; but whether the motion was overruled because the grounds filed did not contain a correct statement of what occurred upon the trial, or for some other reason, does not appear.
The party making a motion fora new trial can file any grounds he thinks proper. When filed, they show merely upon what he relies to sustain his motion; they do not prove that the' matters which are therein set forth, and relied upon, are true. If such matters relate to the proceedings upon the trial, the decision of the court, which is alledged to be erroneous, should be stated in the bill of exceptions, as well as the fact that it was excepted to at the time [317]*317it was given. The reasons assigned for a new trial cannot, therefore, be regarded as evidence of the action of the court upon the trial.
2. The court of appeals has no power to reverse judgment of a circuit court in a criminal case that unless for an error of that court upon questions of law decided the progress of the trial, and appearing on the record by bill of excephons prepared as provided for in the Code of cases (See Crim. Code, sec. 277.)
A judgment of conviction may be reversed for an error of the circuit court in admitting or rejecting important evidence, but such error must appear on the record.. {Sec. 334, Criminal Code.) The record in this case does not show that the testimony of Mrs. Bailey was objected to If admitted without objection, its admissibility was not passed upon by the court, and therefore it cannot be said, with any propriety, that the pourt erred in admitting it. Its admission under such circumstances would be the act of the parties and not the act of the court.
The evidence of Mrs. Bailey consisted of the statements of the deceased, as to the manner, and the persons by whom, the injury he sustained had been inflicted. The witness proved the deceased stated in the same conversation, “that he was ruined and a dead man, unless he got speedy relief.” She also _ , , , . . . . . . proved that he was very bloody, and became insensible in about twenty minutes after he had made his, statement, and remained in that condition until he ,. , • died. .
We are inclined to the opinion, from the expressions used by the deceased, that he did not feel that certainty of his approaching dissolution which the law treats as equivalent to the solemn sanction of an oath, and regardssas indispensable to make dying declarations admissible as evidence. But as all the facts stated by him were more fully proved by the other testimony in the cause, and it does not appear that his dying declarations, when deposed to by Mrs. Bailey, were objected to as evidence, and no reasonable doubt of the guilt of the accused, could arise, even if her evidence were excluded; there does not seem to be any good reason why this court should indulge the supposition,, that this evidence had been objected to when the fact does not so appear on the record. And if it were not objected to on the trial, [318]*318nor any motion made to exclude it, its competency cannot be inquired into by this court, whose revisory jurisdiction in criminal cases is restricted to errors of law, committed by the circuit court in the progress of the trial, and appearing on the record by a bill of exceptions, prepared as provided in the Code of Practice in civil cases. (Sec. 277, Criminal Code)
3. The common rule of evidence in criminal cases is, that when several persons are jointly indicted, one is not a competent witness for the other. (12 Hom’d, 361; 1 Phillips’ Ev. 74, Sfc.)
4. By our Criminal Code, (sec. 232,) the court may permit one jointly indicted, where there is no su ffieient proof against him to put him on his defense, at the instance of the other party indicted, to order his discharge, and permit such person to testify in behalf of such other person.
[318]*318If Joshua Adwell were a competent witness, as his testimony might have had an important bearing upon the decision of the question of the guilt or innocence of the accused, we should feel a very great reluctance, in a case like this, to permit an omission in the record, that may have been occasioned by the mere oversight of counsel, so to operate as to deprive the accused of the benefit of this testimony. But we are satisfied that the decision was correct, if as alledged, the court did refuse to permit this witness to testify for the accused.
According to the common law rule of evidence, where several persons are jointly indicted, one is not a competent witness for the other, even where they are tried separately. (United States vs. Reed and Clements, 12 Howard, 361; Wharton’s Amer, Crim. Law, 367; 1 Phil. Ev., 74.
There has been very little conflict in the decisions of the state courts on this question, but where the common law doctrine on the subject has not been changed by statute, the decisions are nearly unanimous in adopting the rule that regards such testimony as incompetent. (The people vs. Bill, 10 Johnson’s Reports, 95 ; the people vs. Williams, 19 Wendell, 377; Campbell vs. Conn, 2 Virg. Cas., 314; the State vs. Alexander, 2 Rep. Const. Ct. So. Ca., 171; Pennsylvania vs. Leach, Addis., 352; State vs. Blannerhassett, Walker’s Rep., 7, 16, 17; State vs. Mills, 2 Dev., 420; State vs. Smith, 2 Iredell, 402; Commonweatth vs. Marsh and Barton, 10 Pick., 57.
The existence of this rule of evidence is evidently recognized by the Criminal Code of this state. By section 232 it is provided that where two or more [319]*319persons are included in the same indictment, and the court is of opinion that the evidence in regard to a particular individual is not sufficient to put him on his defense, it must, on the motion of either party desiring to use such defendant as a witness, order him to be discharged from the indictment, and permit him to be examined as a witness. Now, this provision was wholly unnecessary, if a defendant has the right when he chooses to be tried separately, to use the testimony of another defendant, who has been jointly indicted with him, before the latter be either acquitted or convicted. But if the rule be, that where several persons are jointly indicted, one is not a competent witness for another, who is tried separately, without being first acquitted or convicted, then the propriety of the provision is obvious.
5., The jury should consider and duly weigh all the testimony permitted to go to them, and it is error in the court to instruct the jury that they should find in any particular way. If they do or do not be lie.re a particular part of the testimony, they should consider it together.
[319]*319This rule of the common law seems to have been founded on public policy, as well as upon the general principle which excludes, as incompetent, all the parties to the record. The tendency of modern adjudications, as well as modern legislation, has been to enlarge the -sphere of competency, and to permit many objections that were at one time regarded as affecting the competency of witnesses, to go to their credibility alone. But the rule of evidence under consideration, seems to be too firmly established by authority, sustained in this state, as it evidently has been, by legislative recognition, to be changed by judicial action, even if its justice and policy were more questionable than they appear to be. It must, therefore, be regarded as the law, until it be changed by statute, it such a change be deemed necessary and proper, by the legislative department of the government.
The position assumed on the part of the defendant, in the sixth instruction asked for, was obviously erroneous, and was therefore properly overruled by the court. The proposition it contained was, that if, in the opinion of the jury, one of the witnesses for the Commonwealth, by the name of Lloyd, was in[320]*320capable from age, blindness, or other cause, of so observing the accused as to enable him to identify him, with undoubted certainty, they should acquit the prisoner, unless they believed, beyond a reasonable doubt, that he was identified by other proof in the cause, independent of Lloyd’s testimony. The effect of the instruction as asked, would have been to exclude Lloyd’s testimony from the consideration of the jury altogether, if it alone was not sufficient to identify the accused, with undoubted certainty, as one of the persons who had committed the murder, although the jury might have regarded it as entirely sufficient for that purpose, in conjunction with the other testimony in the cause. The jury had an undoubted right to consider all the testimony together, and to give to each part of it such weight as, in their opinion, it was justly entitled to. The proposition that each part of it should be separately considered and passed upon by the jury, had neither the sanction of law nor reason to sustain it.
The principle of law announced by the court, “that if the jury believed that any material evidence known to a party was withheld by him, the presumption was that the fact, if proven, would operate against him,” was substantially correct. It was properly substituted in lieu of the instruction asked for on the part of the defendant, which, by selecting out one or two facts from among many others that were proved, attempted to impart to them a weight and significance to which they were not entitled, when considered in connection with all the other testimony before the jury. There does not, therefore, seem to be any error in the record which would authorize this court to reverse the judgment of conviction.
Wherefore, the judgment is affirmed.