STONE, J.
‘The witness, Pendergrast, was permitted to testify, against the objection of defendant, that in a conversation between witness and deceased, had prior to the al- ■ leged killing, the deceased spoke of the prisoner, Eaire, during a conversation which related to the Walsh robbery. What was said was not permitted to be shown; but the evident tendency of the testimony, and the order in which it was stated, was to connect the prisoner’s name with the ‘Walsh robbery.’ This was clearly irrelevant. It was but a repetition of unsworn hearsay, and we can not perceive its materiality, if proved as a fact, offered alone as it was, without any surroundings, or connecting circumstances. Connecting his name with a robbery, could not fail to stimulate or engender a prejudice against him ; and there is nothing shown to connect it with the homicide, or with a motive for its commission. Previous malice towards the deceased, or a motive for taking his life, may, as a rule, be proved against any one charged with murder; but it must be proved as a fact, not as hearsay. — Campbell v. The State, 23 Ala. 44; Ingram v. The State, 39 Ala. 247; Balaam v. The State, 17 Ala. 451; Magee v. The State, 32 Ala. 575.
The question of the admissibility of dying declarations, is for the court’s determination. The jury passes upon their [80]*80credibility and sufficiency, but not upon tlieir admissibility. To justify their admission, they must be made under a conviction of impending death, and, in scope, must be confined to the facts and circumstances immediately connected with the mortal injury. — 1 Brick. Big. 511, 512, §§891, 892, 893, 894. The rulings of the city court on this question are free from error. — Edgar v. The State, 43 Ala. 45.
It should be an extreme case to justify shackles or manacles on a prisoner undergoing trial. Sir Wm. Blackstone, 4th Com. 322, says : “The prisoner must be brought to the bar without irons, or any manner of shackles or bonds, unless there be evident danger of an escape, and then he may be secured with irons.” And, as we understand the principle we are discussing, all the authorities agree substantially with what is said by Sir William Blackstone. In Hale’s Pleas of the Crown, vo'l. 2, p. 219, it is stated thus: “ The prisoner, though under indictment of the highest crime, must be brought to the bar without irons and all manner of shackles or bonds, unless there be a danger of escape, and then they may be brought with irons.” In Layer’s case, the Lord Chief Justice said, “As to the chains you complain of, it must be left to those to whom the custody of you is committed by law, to take care that you may not make your escape ; when you come to your trial, then your chains may be taken off.” — 16 Howell’s St. Trials, 94. In Waite’s case, 1 Leach, 33, the Court said, “The prisoner, at the time of his arraignment, desired that his irons might be taken off; but the court informed him that they had no authority for that purpose until the jury were charged to try him. He accordingly pleaded not guilty; and being put upon his trial, the court immediately ordered his fetters to be knocked off.” Waite was indicted for grand larceny, in the theft of six East India bonds, of ¿£100 each, the property of the bank of England. The principle is thus stated in 1 Bish. Or. Proc. §731: “The prisoner, on his arraignment, though under an indictment of the highest crime, must be brought to the bar without irons and all manner of shackles and bonds, unless there be a danger of escape, and then he may be brought with irons.”
As we understand the foregoing authorities, from the learned Blackstone down, there is no absolute, unbending rule, that a prisoner on trial for crime shall, in no case, be fettered. Even in Harrington’s case, 42 Cal. 165 (the only case brought to our notice, in which there was a reversal on this account), the language of the court forbids the construction that it would, under all circumstances, be error to proceed with the trial of a prisoner, without removing his [81]*81shackles. The language of the court was, “ To require a prisoner, during the progress of his trial before the court and jury, to appear and remain with chains and shackles upon his limbs, without evident necessity for such restraint, for the purpose of securing his presence for judgment, is a direct violation of the common law rule, and of the thirteenth section of our criminal practice act. In the present case, there is no pretense of necessity for the manacles and chains upon the defendants, during their trial, to secure their presence to answer the judgment.” It was stated in the bill of exceptions that “ no circumstances or facts were shown to the court why a different rule should be enforced in this cause than any other.” The defendants were tried for the crime of robbery. It should be observed that under the California judicial system, an appeal lies to their Supreme Court from an order granting or refusing a new trial. We think some importance should be attached to the fact, that in that case the decision of the court that the prisoner was entitled to appear for trial “free from all manner of shackles or bonds,” is qualified by the emphatic language, “unless there is danger of his escape.” All these authorities concede, that there may be circumstances — danger of the prisoner’s escape — which would justify placing fetters upon him.
This court has no right or power to entertain appeals from orders of the inferior courts, granting or refusing new trials, or granting or refusing continuances or changes of venue. These are confided to the sound discretion of the courts of primary jurisdiction. And, inasmuch as there are cases in which it is permissible to try prisoners with shackles on them, we confess ourselves unable to lay down any rule for the guidance of the primary courts, except to leave the question to their sound and enlightened discretion. Of course, no prisoner, while undergoing trial, should be exposed to the discomfort or mortification of any description of shackles or bonds, unless his conduct in prison, or other satisfactory evidence, create a reasonable belief that such restraint is necessary to prevent his escape; or, perhaps, to prevent a rescue, if surrounding circumstances give sufficient evidence of the danger. It is the duty of the sheriff to keep the prisoner in safe custody, that he may abide the judgment of the law; and his watchfulness, sanctioned and controlled by the court, will rarely err in the exercise of such power. As we have said before, we know not how to lay down a rule for the administration of an appellate jurisdiction over such precautionary measures.
In this case, the record informs us that the prisoner had made to the sheriff violent threats, in case he was convicted. [82]*82He was indicted and to be tried for an alleged murder, committed without warning, and by assassination. The presiding judge and sheriff, each filling very responsible offices, and acting under a solemn official oath, could much better judge of the necessity of extraordinary restraint, than we possibly can. It is contended, however, that there should have been a public inquiry and ascertainment of this necessity, and that the prisoner should have been allowed to be present, and confront and controvert the evidence offered, if he desired. The prisoner’s arms were free, but there were clasps on his ankles, connected by a chan 18 inches long, inches in diameter. This was discovered by prisoner’s counsel while the trial was in progress, and he immediately called the attention of the court to it, and asked that they be removed.
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STONE, J.
‘The witness, Pendergrast, was permitted to testify, against the objection of defendant, that in a conversation between witness and deceased, had prior to the al- ■ leged killing, the deceased spoke of the prisoner, Eaire, during a conversation which related to the Walsh robbery. What was said was not permitted to be shown; but the evident tendency of the testimony, and the order in which it was stated, was to connect the prisoner’s name with the ‘Walsh robbery.’ This was clearly irrelevant. It was but a repetition of unsworn hearsay, and we can not perceive its materiality, if proved as a fact, offered alone as it was, without any surroundings, or connecting circumstances. Connecting his name with a robbery, could not fail to stimulate or engender a prejudice against him ; and there is nothing shown to connect it with the homicide, or with a motive for its commission. Previous malice towards the deceased, or a motive for taking his life, may, as a rule, be proved against any one charged with murder; but it must be proved as a fact, not as hearsay. — Campbell v. The State, 23 Ala. 44; Ingram v. The State, 39 Ala. 247; Balaam v. The State, 17 Ala. 451; Magee v. The State, 32 Ala. 575.
The question of the admissibility of dying declarations, is for the court’s determination. The jury passes upon their [80]*80credibility and sufficiency, but not upon tlieir admissibility. To justify their admission, they must be made under a conviction of impending death, and, in scope, must be confined to the facts and circumstances immediately connected with the mortal injury. — 1 Brick. Big. 511, 512, §§891, 892, 893, 894. The rulings of the city court on this question are free from error. — Edgar v. The State, 43 Ala. 45.
It should be an extreme case to justify shackles or manacles on a prisoner undergoing trial. Sir Wm. Blackstone, 4th Com. 322, says : “The prisoner must be brought to the bar without irons, or any manner of shackles or bonds, unless there be evident danger of an escape, and then he may be secured with irons.” And, as we understand the principle we are discussing, all the authorities agree substantially with what is said by Sir William Blackstone. In Hale’s Pleas of the Crown, vo'l. 2, p. 219, it is stated thus: “ The prisoner, though under indictment of the highest crime, must be brought to the bar without irons and all manner of shackles or bonds, unless there be a danger of escape, and then they may be brought with irons.” In Layer’s case, the Lord Chief Justice said, “As to the chains you complain of, it must be left to those to whom the custody of you is committed by law, to take care that you may not make your escape ; when you come to your trial, then your chains may be taken off.” — 16 Howell’s St. Trials, 94. In Waite’s case, 1 Leach, 33, the Court said, “The prisoner, at the time of his arraignment, desired that his irons might be taken off; but the court informed him that they had no authority for that purpose until the jury were charged to try him. He accordingly pleaded not guilty; and being put upon his trial, the court immediately ordered his fetters to be knocked off.” Waite was indicted for grand larceny, in the theft of six East India bonds, of ¿£100 each, the property of the bank of England. The principle is thus stated in 1 Bish. Or. Proc. §731: “The prisoner, on his arraignment, though under an indictment of the highest crime, must be brought to the bar without irons and all manner of shackles and bonds, unless there be a danger of escape, and then he may be brought with irons.”
As we understand the foregoing authorities, from the learned Blackstone down, there is no absolute, unbending rule, that a prisoner on trial for crime shall, in no case, be fettered. Even in Harrington’s case, 42 Cal. 165 (the only case brought to our notice, in which there was a reversal on this account), the language of the court forbids the construction that it would, under all circumstances, be error to proceed with the trial of a prisoner, without removing his [81]*81shackles. The language of the court was, “ To require a prisoner, during the progress of his trial before the court and jury, to appear and remain with chains and shackles upon his limbs, without evident necessity for such restraint, for the purpose of securing his presence for judgment, is a direct violation of the common law rule, and of the thirteenth section of our criminal practice act. In the present case, there is no pretense of necessity for the manacles and chains upon the defendants, during their trial, to secure their presence to answer the judgment.” It was stated in the bill of exceptions that “ no circumstances or facts were shown to the court why a different rule should be enforced in this cause than any other.” The defendants were tried for the crime of robbery. It should be observed that under the California judicial system, an appeal lies to their Supreme Court from an order granting or refusing a new trial. We think some importance should be attached to the fact, that in that case the decision of the court that the prisoner was entitled to appear for trial “free from all manner of shackles or bonds,” is qualified by the emphatic language, “unless there is danger of his escape.” All these authorities concede, that there may be circumstances — danger of the prisoner’s escape — which would justify placing fetters upon him.
This court has no right or power to entertain appeals from orders of the inferior courts, granting or refusing new trials, or granting or refusing continuances or changes of venue. These are confided to the sound discretion of the courts of primary jurisdiction. And, inasmuch as there are cases in which it is permissible to try prisoners with shackles on them, we confess ourselves unable to lay down any rule for the guidance of the primary courts, except to leave the question to their sound and enlightened discretion. Of course, no prisoner, while undergoing trial, should be exposed to the discomfort or mortification of any description of shackles or bonds, unless his conduct in prison, or other satisfactory evidence, create a reasonable belief that such restraint is necessary to prevent his escape; or, perhaps, to prevent a rescue, if surrounding circumstances give sufficient evidence of the danger. It is the duty of the sheriff to keep the prisoner in safe custody, that he may abide the judgment of the law; and his watchfulness, sanctioned and controlled by the court, will rarely err in the exercise of such power. As we have said before, we know not how to lay down a rule for the administration of an appellate jurisdiction over such precautionary measures.
In this case, the record informs us that the prisoner had made to the sheriff violent threats, in case he was convicted. [82]*82He was indicted and to be tried for an alleged murder, committed without warning, and by assassination. The presiding judge and sheriff, each filling very responsible offices, and acting under a solemn official oath, could much better judge of the necessity of extraordinary restraint, than we possibly can. It is contended, however, that there should have been a public inquiry and ascertainment of this necessity, and that the prisoner should have been allowed to be present, and confront and controvert the evidence offered, if he desired. The prisoner’s arms were free, but there were clasps on his ankles, connected by a chan 18 inches long, inches in diameter. This was discovered by prisoner’s counsel while the trial was in progress, and he immediately called the attention of the court to it, and asked that they be removed. The court replied, it was clone by order of the court, on representations made by the sheriff. To the motion of defendant that the shackles be removed, the court proposed to have the sheriff sworn as to the cause of the shackling, when the defendant, by his counsel, stated that he did not want that done, as he did not know what the statement of the sheriff might be; and defendant withdrew the motion, but asked the court to note what had taken place, relating to the prisoner being in irons, and allow an exception thereto, which was granted by the court. The prisoner was not in irons during the first day of the trial, but was shackled, as above shown, during the second day.
The bill of exceptions states that “ the representations made by the sheriff, and which Avere the cause of the court ordering the irons to be kept on defendant during his trial, were made to the court in open court, but not under oath, and inaudibly to any save the court, and not in a voice to be heard either by the jury, the defendant, or his counsel; and Avere, in substance, that the prisoner stated to the sheriff, who had him in charge, that he would rather die than be hung or sent to the penitentiary; and if the jury found him guilty, he would not come out of the court house alive, but that he would escape, or the officer would have to shoot him. The sheriff further stated, that from the character of the man, and his conduct in jail, he entertained serious apprehensions that the prisoner would attempt to escape and create a scene in the court room, if not secured. The court told the sheriff to take the necessary precaution to prevent any attempted escape, but not to place the irons on his hands, and make it as little apparent as possible, and not in the presence of the jury; and this was done.”
As we have said above, the judge and the sheriff were sworn officers; and we think it is not a violation of the usages [83]*83of courts, nor of any right of the prisoner, for the court, in incidental matters, connected with the conduct of the business of the court, to act on the statement of its executive officer, without requiring of him an oath of the truth of his representations. And we think that to require a public disclosure and trial of the facts, as a preliminary to the placing of irons on prisoners undergoing trial, would be much more likely to create a prejudice against the prisoner than quietly to order the same, as was done in this case.
The practice of the Lord Chief Justice Holt, we think, should weigh nothing against these views. The remark imputed to him, as we understand it, was made in the trial of a cause which was marked by no facts or circumstances rendering it necessary that the prisoner should be shackled. The remark did honor to his head and heart, and was intended, as its language imports, to express more a rule of judicial propriety, than of municipal law. He was dealing with a custom, then become common and oppressive, and not with a ease, whose circumstances showed the necessity of bands to prevent escape. To shackle prisoners without cause, is certainly a revolting practice. We do not think there ever has been an unbending rule of law, that no prisoner, under any circumstances, can be brought to trial in irons. True, it should rarely be done, and never, except in cases where the circumstances show real danger of escape, or, perhaps, of rescue. But we do not think that, under our system, this question can be raised as cause of reversal in this court.
For the error above pointed out, the judgment of the City Court is reversed, and the cause remanded. Let the prisoner remain in custody until discharged by due course of law.
BBICKELL, C. J.
-I cannot assent to the proposition, that it is mere matter of discretion with a judge, whether the prisoner shall be brought to the bar, or tried in fetters. There may, possibly, be a necessity for fettering a prisoner, and if such necessity should be shown, it may be the duty of the court to order it. The action of the court is, in my judgment, revisable, and a judgment of conviction should be reversed, if it did not clearly appear that there was an immediate, pressing necessity for the order, which it is admitted should be made only in exceptional cases.