ORMOND, J.
The first question to be considered is, what points are presented for revision by the writ of error. The Legislature, at its last session, authorised bills of exceptions to be taken by defendants in certain criminal cases, in the same manner as in civil cases. The counsel for the prisoner’, contends that the court may disregard the bill which has been taken in this case, upon the ground that this court, if the court below had refused to seal the bill, would not have awarded a mandamus; while on the other hand, the Attorney General insists that this court can look to no other error than that assigned on the bill.
Previous to the passage of this law, no question of fact could be presented on the record, in a criminal case, for the revision of this court; unless the court below thought proper to refer it as a question of novelty and difficulty. The plain design of the Le-islature was to give to defendants, in those criminal cases embraced by the statute, the right to put any question of fact upon the record, to enable them to apply to this court for a writ of error. The writ of error, when granted, applies to, and brings up the entire record, and error may therefore be assigned upon any part of it. When a bill of exceptions is allowed, either in a civil or [670]*670criminal case, the facts there embodied become a part of the record, and cannot be waived by either party, or disregarded by this court. ;
The three first assignments of error suppose a misjoinder of offences in the two first counts of tjhe indictment, and that, as the verdict was general, no judgment'can be rendered.upon it. The first count in the indictment is a count at common law,- for the murder of the slave, to which no objection has been urged. The second appears to have bee'n framed on the 7th section of the 3d declares that an owner of a ng, &c., though without inten-chapter of the penal - code, which slave, causing his death by whippsi tion to kill, unless in self-defence, or in the use of so much force as is necessary to procure obedience from the slave, shall be deemed guilty of murder in the second degree.
There is no difference in principle between the 7th and the preceding section; the first embracing the case of an overseer, the latter that of an owner. These sections treat of the crime of murder committed on a slave; they do not create a mere offence, unknown to the common law; nor do they subject, the offender to a greater punishment than was inflicted at common law; they are therefore not statute offences, and! by necessary consequence, an indictment may be framed upon them at common law, as was held by this court at the present term, in the State v. Flanegin. Indeed the sections of the code we nave been considering, merely promulgate rules of evidence, and are declaratory of the common law. It is therefore unnecessary to consider whether the second count be good or not, as the first count is unquestionably good, and that will sustain the judgment of the court, as was held by this court in the State v. Coleman, [5 Porter, 32,] and to the same effect might be cited numerous authorities in England and the United States.
The same case is also an authority to show that the court may refuse to quash an indictment, and; put the party to his demurrer; and that a refusal to quash cannot be reviewed on error. It is equally as clear that the com"; may permit the solicitor to elect on which of the counts of tie indictment he will proceed. Such election was made in this case, and the third count, which was for a misdemeanor, abandoned. This course, could not by possibility prejudice the prisoner, established practice at the presem and is hi accordance with the day. [Young v. The King, [671]*6713 D. & E. 106; Commonwealth v. Gillespie, 7 S. & R. 469; Burk v. The State, 2 H. & J. 426, Kane v. The People, 8 Wend. 211; 1 Chitty’s Crim. Law, 249.]
The assignment that there was no arraignment of the prisoner is not sustained by the record. It there stated that “ the bill of indictment being read the defendant pleaded thereto, not guilty, and thereupon came a jury, &c.” It was supposed the indictment might have been read for the information of the bystanders or read to the jury, and that afterwards the defendant was called on to plead; but it appears that the jury were not empannelled when the indictment was read, and it would be absurd*to suppose that the indictment was read to persons having no interest whatever in it. But there is her-e no room for conjecture. The indictment being read, the defendant pleaded thereto « not guilty,” is the language of the record, which is a clear and perspicuous statement of the arraingment of the prisoner.
Nor is there any force in the objection that it does not appear that the prisoner was present when the jury rendered their verdict. In the State v. Hughes, [2 Ala. Rep. 102,] it appeared that the prisoner was not present when the verdict was rendered, and for that cause he moved in arrest of judgment; and this court held it error and reversed the judgment. In this case, we think it-does sufficiently appear that the prisoner was 'present when the verdict was rendered. The record, after reciting the rendition of the verdict, proceeds to state “ and thereupon the prisoner was remanded to jail to receive the sentence of the court.” According to all rules of fair interpretation and just criticism, we must understand from this, that the prisoner was in court when the jury rendered their verdict. The words “ and thereupon,” connects the prisoner with the rendition of the verdict, and shows that he was present. We cannot presume, as we are asked to do, by the counsel, that the prisoner, having been bailed previous to his trial, was permitted by the court to leave the bar, while the jury were deliberating on their verdict, in a case involving a capital felony. He might, it is true, have been remanded to jail whilst the jury were considering of their verdict, but if that was done, it appears he was again remanded to jail, language which cannot be true, if he was not brought from the jail to hear the verdict pronounced. In addition, it may be added that when called on to say whether he had any thing to object to the sentence being pronounced, he [672]*672answered, “ nothing.” The record is a narative of what took place at the trial; in construing it we apply to it those rules of interpretation which govern all written instruments. It is to be construed according to its plain and obvious import, and not by those rules which would make if necessary that it should state those facts it purports to detail, with so much precision and certainty as to exclude every other conclusion.
It remains but to enquire whether the proper oath was administered to the jury. They were sjworn “ a true verdict to render according to the evidence;” and lit is insisted they should have been sworn á true verdict to render according to the law and evidence. In the examination of this question, the counsel for the prisoner have gone into an able and elaborate argument to show, that in criminal cases, the jury are judges both of law and fact; but the true question appears to bé whether bjr the form in which the oath was administered the jury were deprived of the power of determining the law. Í
The power of the jury to judge both of law and fact, results necessarily from the very constitution of that body, and from their right to find a general verdict for the prisoner, which the court cannot disturb. This right' is explicitly admitted by Littleton & Coke, and other ancient writers upon the common law. [Coke Litt. 228, a.] So in 4 Black. Com.
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ORMOND, J.
The first question to be considered is, what points are presented for revision by the writ of error. The Legislature, at its last session, authorised bills of exceptions to be taken by defendants in certain criminal cases, in the same manner as in civil cases. The counsel for the prisoner’, contends that the court may disregard the bill which has been taken in this case, upon the ground that this court, if the court below had refused to seal the bill, would not have awarded a mandamus; while on the other hand, the Attorney General insists that this court can look to no other error than that assigned on the bill.
Previous to the passage of this law, no question of fact could be presented on the record, in a criminal case, for the revision of this court; unless the court below thought proper to refer it as a question of novelty and difficulty. The plain design of the Le-islature was to give to defendants, in those criminal cases embraced by the statute, the right to put any question of fact upon the record, to enable them to apply to this court for a writ of error. The writ of error, when granted, applies to, and brings up the entire record, and error may therefore be assigned upon any part of it. When a bill of exceptions is allowed, either in a civil or [670]*670criminal case, the facts there embodied become a part of the record, and cannot be waived by either party, or disregarded by this court. ;
The three first assignments of error suppose a misjoinder of offences in the two first counts of tjhe indictment, and that, as the verdict was general, no judgment'can be rendered.upon it. The first count in the indictment is a count at common law,- for the murder of the slave, to which no objection has been urged. The second appears to have bee'n framed on the 7th section of the 3d declares that an owner of a ng, &c., though without inten-chapter of the penal - code, which slave, causing his death by whippsi tion to kill, unless in self-defence, or in the use of so much force as is necessary to procure obedience from the slave, shall be deemed guilty of murder in the second degree.
There is no difference in principle between the 7th and the preceding section; the first embracing the case of an overseer, the latter that of an owner. These sections treat of the crime of murder committed on a slave; they do not create a mere offence, unknown to the common law; nor do they subject, the offender to a greater punishment than was inflicted at common law; they are therefore not statute offences, and! by necessary consequence, an indictment may be framed upon them at common law, as was held by this court at the present term, in the State v. Flanegin. Indeed the sections of the code we nave been considering, merely promulgate rules of evidence, and are declaratory of the common law. It is therefore unnecessary to consider whether the second count be good or not, as the first count is unquestionably good, and that will sustain the judgment of the court, as was held by this court in the State v. Coleman, [5 Porter, 32,] and to the same effect might be cited numerous authorities in England and the United States.
The same case is also an authority to show that the court may refuse to quash an indictment, and; put the party to his demurrer; and that a refusal to quash cannot be reviewed on error. It is equally as clear that the com"; may permit the solicitor to elect on which of the counts of tie indictment he will proceed. Such election was made in this case, and the third count, which was for a misdemeanor, abandoned. This course, could not by possibility prejudice the prisoner, established practice at the presem and is hi accordance with the day. [Young v. The King, [671]*6713 D. & E. 106; Commonwealth v. Gillespie, 7 S. & R. 469; Burk v. The State, 2 H. & J. 426, Kane v. The People, 8 Wend. 211; 1 Chitty’s Crim. Law, 249.]
The assignment that there was no arraignment of the prisoner is not sustained by the record. It there stated that “ the bill of indictment being read the defendant pleaded thereto, not guilty, and thereupon came a jury, &c.” It was supposed the indictment might have been read for the information of the bystanders or read to the jury, and that afterwards the defendant was called on to plead; but it appears that the jury were not empannelled when the indictment was read, and it would be absurd*to suppose that the indictment was read to persons having no interest whatever in it. But there is her-e no room for conjecture. The indictment being read, the defendant pleaded thereto « not guilty,” is the language of the record, which is a clear and perspicuous statement of the arraingment of the prisoner.
Nor is there any force in the objection that it does not appear that the prisoner was present when the jury rendered their verdict. In the State v. Hughes, [2 Ala. Rep. 102,] it appeared that the prisoner was not present when the verdict was rendered, and for that cause he moved in arrest of judgment; and this court held it error and reversed the judgment. In this case, we think it-does sufficiently appear that the prisoner was 'present when the verdict was rendered. The record, after reciting the rendition of the verdict, proceeds to state “ and thereupon the prisoner was remanded to jail to receive the sentence of the court.” According to all rules of fair interpretation and just criticism, we must understand from this, that the prisoner was in court when the jury rendered their verdict. The words “ and thereupon,” connects the prisoner with the rendition of the verdict, and shows that he was present. We cannot presume, as we are asked to do, by the counsel, that the prisoner, having been bailed previous to his trial, was permitted by the court to leave the bar, while the jury were deliberating on their verdict, in a case involving a capital felony. He might, it is true, have been remanded to jail whilst the jury were considering of their verdict, but if that was done, it appears he was again remanded to jail, language which cannot be true, if he was not brought from the jail to hear the verdict pronounced. In addition, it may be added that when called on to say whether he had any thing to object to the sentence being pronounced, he [672]*672answered, “ nothing.” The record is a narative of what took place at the trial; in construing it we apply to it those rules of interpretation which govern all written instruments. It is to be construed according to its plain and obvious import, and not by those rules which would make if necessary that it should state those facts it purports to detail, with so much precision and certainty as to exclude every other conclusion.
It remains but to enquire whether the proper oath was administered to the jury. They were sjworn “ a true verdict to render according to the evidence;” and lit is insisted they should have been sworn á true verdict to render according to the law and evidence. In the examination of this question, the counsel for the prisoner have gone into an able and elaborate argument to show, that in criminal cases, the jury are judges both of law and fact; but the true question appears to bé whether bjr the form in which the oath was administered the jury were deprived of the power of determining the law. Í
The power of the jury to judge both of law and fact, results necessarily from the very constitution of that body, and from their right to find a general verdict for the prisoner, which the court cannot disturb. This right' is explicitly admitted by Littleton & Coke, and other ancient writers upon the common law. [Coke Litt. 228, a.] So in 4 Black. Com. 361, it is laid down that if the jury doubt the matter of lawj they may choose to find a special verdict; but have an unquestionable right to find a general verdict, and determine the law as; well as the fact. At the same time it cannot be doubted that these sages of the law, considered it the duty of the jury, to receive the law from the court, and that it wa3 at the “ hazard of a breach of their oaths, when they undertook the decision of questions j of law.” [See also People v. Croswell, 3 Johns. Cases, 337.] j
When the power of juries to find a general verdict, and consequently their right to determine,; without appeal, both law and fact, is admitted, the abstract question whether it is, or is not their duty to receive the law from the court, becomes rather a question of Casuistry or conscience, 'than one of law; nor can we think that any thing is gained in jthe administration of criminal justice, by urging the jury to disregard the opinion of the court upon the law of the case. It must, we think, be admitted, that the judge is better qualified to expound the law, from his previous [673]*673training, than the jury; and in practice, unless he manifests a wanton disregard of the rights of the prisoner, a circumstance which rarely happens in this age of the world, and in this country, his opinion of the law will be received by the jury as an authoritative exposition from their conviction of his superior knowledge of the subject.
This right of the jury is doubtless one of inestimable value, especially in those cases where it may be supposed the government has an interest in the conviction of the criminal; but in this country, when the government in all its branches, executive, legislative and judicial, is created by the people, and is in fact their servant, we are unable to perceive why the jury should be invited or urged to exercise this right contrary to their own convictions of their capacity to do so, without danger of mistake. It appears to us that it is sufficient that it is admitted that it is their peculiar province to determine facts, intents, and pui’poses; that it is their right to find a general verdict, and consequently that they must determine the law; and whether in the exercise of this right they will distrust the court as expounders of the law, or whether they will receive the law from the court, must be left to their own discretion, under the sanction of the oath they have taken.
We do not doubt that the oath administered in this case was the proper one. It is the oath which has been administered to juries, in criminal cases, from the earliest records of criminal trials, to the present day, both in England and the United States; and sitting here as we do, to expound and not to make or alter the law, we must consider this unbroken chaiii as authoritative testimony of what the law is. We entertain as little doubt that this form of administering the oath does not preclude the jury from determining both law and fact. W hen a juror is sworn, he is invested with the office of judge, and authorised to pronounce the law in the particular case he has to try, and does so when he renders his verdict, whether he abides by or disregards the opinion of the court. But it is said in argument that if he be a judge, like all other judges, he should be sworn faithfully to administer the law. The juror is one of the prisoner’s peers, authorised and required by his oath to make a' true deliverance between him and the State, and cannot be supposed to have any desire to oppress the prisoner, or to find him guilty against law, and there is therefore no reason to apprehend that he will convict him against law. [674]*674ertain a serious doubt that the him to decide the law correct-It is, however, impossible to ent very form of the jurpr’s oath bind; ly, precisely as it is obligatory on him to determine the facts truly.
The charge preferred by the State, is, that the prisoner, by an act done, has offended one of its laws. The .law which he is charged to have offended, is certain, and the juror as judge must be presumed to know it; the guilj; or innocence of the prisoner depends on the ascertainment of the fact, and ifin passing on the guilt or innocence' of the prisoner, the juror should intentionally misapply the law to the fact, he is as guilty of a violation of his oath as if he should falsely find tljie fact either for or against the prisoner. i
The earnestness with which 'this point was pressed on the court, must be its excuse for examining, at some length, a question about which it is difficult to suppose any serious doubt could be entertained.
It remains but to add, that no and that the judgment of the couit below is therefore affirmed, error is shown upon the record,