Opinion,
Mr. Chief Justice Paxson:
This record comes up without a single exception in the court below. It was conceded upon the argument at bar that no exceptions were taken. Yet we have assignments of error to various matters which occurred at the trial, to the charge of the court and the answers to points. Neither the charge nor the points and answers are attached to the record. In the absence of a bill of exceptions, we have nothing before us but the bare record, such as would be sent up Upon a common-law writ of certiorari. The object of an exception is to place something upon the record which occurred upon the trial below. Until the matter complained of is thus placed upon the record, we can have no official knowledge of it. We can properly know nothing of a trial except as it is disclosed by the record. If we were to decide cases by what is outside of it, our decisions would be arbitrary rescripts instead of judicial decrees, and would deservedly lose the confidence of the bar and the community.
There is an orderly and legal way of bringing cases into this court for review, and of raising the questions we are asked to pass upon. It is a mistake to suppose that we possess the arbitrary power of disregarding all forms and precedents to meet the supposed justice or merits of a particular case, This is always the argument of despotic power, when it seeks to substitute its own will for the well-settled principles of the law. I can account for the entire absence of exceptions, only upon the theory that at the trial the learned counsel for the prisoner [477]*477were satisfied with the rulings of the court. If not so satisfied, it is difficult to understand why exceptions were not taken. It may be the counsel were disappointed in the verdict, and anticipated a conviction of a lower degree of crime. Be that as it may, the mistake of the jury, if they made one, cannot be corrected in this way. It is very clear that, as the record stands, we could not reverse this judgment, even though we were morally satisfied that error had been committed. The most we could do, under such peculiar circumstances, would be to point out the supposed error and refer it to the board of pardons.
In order that there may be no misapprehension as to the merits of this appeal, we have considered the several assignments of error as though they were sustained by a bill of exceptions.
The first assignment is, in substance, that the trial was irregularly and illegally conducted, because the jurors were examined as to their competency to serve without having been previously sworn upon their voir dire. The testimony in the cause, as well as what occurred at the empaneling of the jury, though not upon the record for the reason above given, is apparently all printed, and an inspection of it shows that the jurors were examined as to their qualifications without having been first sworn to make true answers; that no objection was made to this mode of proceeding, and that the prisoner’s counsel participated in such examination without asking that they be sworn. He had the right to have them sworn; had he demanded it, the oath would no doubt have been administered. The proceeding in question was one step towards selecting a jury. When the name of the juror is called, and he comes to look upon the prisoner, the latter may challenge for cause, or he may waive his right to do so. It is said that in a capital case the prisoner cannot waive anything; that is to say, he is not bound by such waiver. This is a mistake, in the broad sense in which the proposition is usually stated. There are many things as to which his waiver would not bind him; there are, on the other hand, many matters connected with the trial which he may waive. Thus, he may waive his right to cross-examine a witness ; and, as before said, he may waive his right to challenge a juror. But if he challenges the juror for cause, [478]*478he has a right to examine him as to his qualifications, after which, if he has not shown cause, he may challenge peremptorily, or he may waive either form of challenge and allow the juror to take his seat in the box. If this were not so, we might have the anomaly of a challenge for cause, being abundantly sustained by the juror’s answers; a waiver of the challenge by the prisoner, followed by a motion for a new trial in case of conviction, upon the ground that an incompetent juror had been permitted1 to serve. A plea in such case that the juror was not bound by his waiver would not receive much consideration. The prisoner may waive his right to examine the juror on his voir dire. He may accept him without asking a single question, and this is sometimes done. The answers to questions asked upon such an examination are for the court, not for the jury. If the prisoner is willing to put his questions to an unsworn juror, we must presume he is satisfied with the truth of the answers. If he may waive the challenge, and the right to examine the juror on his voir dire, surely he may waive the right to have him sworn.
I have no doubt that if the prisoner had asked the court to have the jurors sworn on their voir dire before he examined them, and the court had refused his request, it would have been error. As was said in O’Mara v. Commonwealth, 75 Pa. 424: “ The proper practice is to examine jurors on their voir dire as to the opinions they have formed.” And in Zell v. Commonwealth, 94 Pa. 258, it was said by our late Brother Teunkisy : “ No request was made that the jurors be sworn on their' voir dire, nor objection made to their examination without, nor exception taken to the allowance of the challenged for cause; and, therefore, the third assignment of error is groundless. However, we will remark that, though it may not be erroneous to omit the oath, unless it be requested to be taken, yet, so far as advised, it is the more general practice, and we think the better one, to examine the juror under his oath.” "Without a further examination and discussion of the authorities, I think the true rule to be deduced therefrom is that the proper practice is to swear the juror. prior to his examination on his voir dire; that, if the prisoner requests it to be done and it .is refused, it is error; yet, when the prisoner voluntarily examines the juror without his being sworn, and without ob[479]*479jeetion or exception, he' cannot take advantage of it after a trial upon the merits. We would not have sustained this assignment, had it an exception to support it.
The second assignment alleges that the trial was unlawful and irregular because the court did not, at the request of the jury, send out to them the testimony of Joseph Louden, to settle a disputed point in regard to what he had testified to. This assignment cannot be sustained. It would have been a mistake to send out his testimony. If the jurors had desired information as to any matter of fact or question of law, they could have come into court and stated their difficulty to the trial judge. He would have answered their inquiries, either as to the facts or the law. The sending out of a part of the testimony to the jury room is without precedent, and would have been a palpable error.
No error is perceived in the answer of the learned judge to the defendant’s third point. Assuming the facts stated in the point to have been found by the. jury, the offence would have been manslaughter, provided the jury also found there was sufficient provocation. This is precisely what the learned judge told them.
The answer to the defendant’s fourth point was also entirely accurate.
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Opinion,
Mr. Chief Justice Paxson:
This record comes up without a single exception in the court below. It was conceded upon the argument at bar that no exceptions were taken. Yet we have assignments of error to various matters which occurred at the trial, to the charge of the court and the answers to points. Neither the charge nor the points and answers are attached to the record. In the absence of a bill of exceptions, we have nothing before us but the bare record, such as would be sent up Upon a common-law writ of certiorari. The object of an exception is to place something upon the record which occurred upon the trial below. Until the matter complained of is thus placed upon the record, we can have no official knowledge of it. We can properly know nothing of a trial except as it is disclosed by the record. If we were to decide cases by what is outside of it, our decisions would be arbitrary rescripts instead of judicial decrees, and would deservedly lose the confidence of the bar and the community.
There is an orderly and legal way of bringing cases into this court for review, and of raising the questions we are asked to pass upon. It is a mistake to suppose that we possess the arbitrary power of disregarding all forms and precedents to meet the supposed justice or merits of a particular case, This is always the argument of despotic power, when it seeks to substitute its own will for the well-settled principles of the law. I can account for the entire absence of exceptions, only upon the theory that at the trial the learned counsel for the prisoner [477]*477were satisfied with the rulings of the court. If not so satisfied, it is difficult to understand why exceptions were not taken. It may be the counsel were disappointed in the verdict, and anticipated a conviction of a lower degree of crime. Be that as it may, the mistake of the jury, if they made one, cannot be corrected in this way. It is very clear that, as the record stands, we could not reverse this judgment, even though we were morally satisfied that error had been committed. The most we could do, under such peculiar circumstances, would be to point out the supposed error and refer it to the board of pardons.
In order that there may be no misapprehension as to the merits of this appeal, we have considered the several assignments of error as though they were sustained by a bill of exceptions.
The first assignment is, in substance, that the trial was irregularly and illegally conducted, because the jurors were examined as to their competency to serve without having been previously sworn upon their voir dire. The testimony in the cause, as well as what occurred at the empaneling of the jury, though not upon the record for the reason above given, is apparently all printed, and an inspection of it shows that the jurors were examined as to their qualifications without having been first sworn to make true answers; that no objection was made to this mode of proceeding, and that the prisoner’s counsel participated in such examination without asking that they be sworn. He had the right to have them sworn; had he demanded it, the oath would no doubt have been administered. The proceeding in question was one step towards selecting a jury. When the name of the juror is called, and he comes to look upon the prisoner, the latter may challenge for cause, or he may waive his right to do so. It is said that in a capital case the prisoner cannot waive anything; that is to say, he is not bound by such waiver. This is a mistake, in the broad sense in which the proposition is usually stated. There are many things as to which his waiver would not bind him; there are, on the other hand, many matters connected with the trial which he may waive. Thus, he may waive his right to cross-examine a witness ; and, as before said, he may waive his right to challenge a juror. But if he challenges the juror for cause, [478]*478he has a right to examine him as to his qualifications, after which, if he has not shown cause, he may challenge peremptorily, or he may waive either form of challenge and allow the juror to take his seat in the box. If this were not so, we might have the anomaly of a challenge for cause, being abundantly sustained by the juror’s answers; a waiver of the challenge by the prisoner, followed by a motion for a new trial in case of conviction, upon the ground that an incompetent juror had been permitted1 to serve. A plea in such case that the juror was not bound by his waiver would not receive much consideration. The prisoner may waive his right to examine the juror on his voir dire. He may accept him without asking a single question, and this is sometimes done. The answers to questions asked upon such an examination are for the court, not for the jury. If the prisoner is willing to put his questions to an unsworn juror, we must presume he is satisfied with the truth of the answers. If he may waive the challenge, and the right to examine the juror on his voir dire, surely he may waive the right to have him sworn.
I have no doubt that if the prisoner had asked the court to have the jurors sworn on their voir dire before he examined them, and the court had refused his request, it would have been error. As was said in O’Mara v. Commonwealth, 75 Pa. 424: “ The proper practice is to examine jurors on their voir dire as to the opinions they have formed.” And in Zell v. Commonwealth, 94 Pa. 258, it was said by our late Brother Teunkisy : “ No request was made that the jurors be sworn on their' voir dire, nor objection made to their examination without, nor exception taken to the allowance of the challenged for cause; and, therefore, the third assignment of error is groundless. However, we will remark that, though it may not be erroneous to omit the oath, unless it be requested to be taken, yet, so far as advised, it is the more general practice, and we think the better one, to examine the juror under his oath.” "Without a further examination and discussion of the authorities, I think the true rule to be deduced therefrom is that the proper practice is to swear the juror. prior to his examination on his voir dire; that, if the prisoner requests it to be done and it .is refused, it is error; yet, when the prisoner voluntarily examines the juror without his being sworn, and without ob[479]*479jeetion or exception, he' cannot take advantage of it after a trial upon the merits. We would not have sustained this assignment, had it an exception to support it.
The second assignment alleges that the trial was unlawful and irregular because the court did not, at the request of the jury, send out to them the testimony of Joseph Louden, to settle a disputed point in regard to what he had testified to. This assignment cannot be sustained. It would have been a mistake to send out his testimony. If the jurors had desired information as to any matter of fact or question of law, they could have come into court and stated their difficulty to the trial judge. He would have answered their inquiries, either as to the facts or the law. The sending out of a part of the testimony to the jury room is without precedent, and would have been a palpable error.
No error is perceived in the answer of the learned judge to the defendant’s third point. Assuming the facts stated in the point to have been found by the. jury, the offence would have been manslaughter, provided the jury also found there was sufficient provocation. This is precisely what the learned judge told them.
The answer to the defendant’s fourth point was also entirely accurate. The learned judge said: “ This is affirmed, if the jury also find that the defendant under those circumstances had no other probable means of escape.” The law is well settled that, while a man may kill another in self-defence, he may not do so if he have other probable means of escape. When his back is to the wall, and the question is whether he shall die or his assailant, he may slay his assailant to preserve his own life; but, if he has probable means of escape without doing so, he must resort to such means before he is justified in killing his adversary. Human life is too sacred to be taken unnecessarily.
The only remaining assignment which deserves attention is the sixth, which is as follows: “ The evidence in this case was not sufficient to establish the essential elements of murder in the first degree, and the verdict was unwarranted by the evidence.”
Without reviewing the testimony in detail, it is sufficient to say that if that of the commonwealth is believed it sustains the verdict. The defence was, that the shooting took place in the course of a fight in a bar-room; that the prisoner was attacked [480]*480and beaten, and that the offence was manslaughter at the most. The prisoner was examined on his own behalf, and was corroborated to some extent. According to the testimony of the commonwealth, however, the prisoner was not in any fight; the fight occurred between two other men, and the prisoner was not struck or maltreated by any one; that he drew his revolver, and fired two shots, each of which destroyed a human life; and the jury have found that it was done with deliberation and an intent to take life. It may be a close case upon this point, but the jury have found the essential facts against the prisoner, and the trial judge would have assumed a grave responsibility had he disturbed the verdict upon this ground. The jury believed the commonwealth’s witnesses, and we cannot say they were wrong in this. It may have gone hard with the prisoner that he carried a concealed deadly weapon, — in itself a violation of law, — ready to be used upon any occasion to take life, and they may have thought that one life was not too much to atone for the two he had taken. However this may be, there was the use of a deadly weapon, and the fact that not one but two shots were fired and two lives sacrificed may have had its effect in convincing the jury that when they were fired it was the deliberate intent of the prisoner to take life. In any event, it was a question for the jury; and, unfortunately for the appellant, they have decided against him, under adequate and proper instructions from the court in regard to what is necessary to constitute murder in the first degree.
Our conclusion is, that had this case come up in proper shape, with the errors assigned based upon a sufficient bill of exceptions, we could not have reversed this judgment.
The judgment of the Oyer and Terminer is affirmed, and the record remitted to that court for the purpose of execution.