The opinion of the court was delivered by
Lewis, C. J.The plaintiffs in error have been convicted of murder in the first degree, and this writ of error is brought to review the proceeding's. We have nothing to do with the facts of the case. These have been passed upon by the jury under the direction of the court.below. ■ Our business is solely with the questions of law brought to our notice by the record, and by the *435bills of exception to the evidence and to the charge of the court. The Act of Assembly of the 6th of November, 1856, gives to every defendant on trial for murder or voluntary manslaughter a right to “ except to any decision of the court upon any point of evidence or law;” and the act directs the exception to be “noted by the court and filed of record, as in civil cases.” As this is the first case that has reached this court under the recent Act of Assembly, it may not be amiss to indicate the principles which, we think, ought to guide us in administering justice under its provisions. Before the enactment referred to, this court had no power to review the decisions of the criminal courts, in admitting or rejecting evidence, or in giving instructions to the jury. In these matters, those courts were essentially supreme. Hereafter, questions of evidence and instructions to the jury in the cases mentioned in the act, are to be reviewed here. But to what extent ? and for what purpose ? The extent is limited to the decisions of the court during the trial, on the points of evidence or law excepted to ly the defendants, and noted and filed of record ly the court. Beyond these, we have no right to touch a single decision of the court in admitting or rejecting evidence, or in charging the jury. The purpose is to do justice. It was certainly no part of the object, of the legislature to obstruct the course of justice in capital cases, by opening the door to reversals upon mere technical and immaterial points in no way affecting the substantial merits of the case. The exceptions are to be “ noted and filed of record as in civil cases,” and, in our judgment, are to receive the same reasonable construction that they receive in civil cases. It is not sufficient that an abstract or technical error has taken place. The plaintiff in error must show that he.excepted to it at the time, and they, gave the court and the opposite counsel an opportunity to correct it. He must also show that he may have been injured by it, for an error which does him no harm furnishes him with no just cause of complaint. In all cases brought here for review, under the Act of 6th November, 1856, it will be the duty of the court to regard substance and not form, and to correct those errors only which appear to have a bearing upon the merits of the particular case, or may operate injuriously as precedents in other cases.
In this case the only bill of exception to evidence is that which relates to the admission of the written confession of Charlotte Jones. The purpose for which it was offered is not stated in the bill, nor are the grounds of objection set forth. It is therefore sufficient for the plaintiffs in error, if they can show any legal ground, to exclude it; and the Commonwealth may, in like manner, show that it was admissible for any legal purpose. The objection to it relied upon here is, that it was obtained by threats and promises. The only threats shown were statements of t.he *436jailer, in which he informed her that “ she had not told the truth when she was examined on Saturday before the mayor;” “that the mayor and his police were in possession of facts directly contradicting what she had stated;” “that she, Fife, and Stewart had all been making statements, and that none of them agreed with each other;” “that Fife had related more truth than any of them.” . The bill of exception does not show whether these communications were made in good faith, or designed as an artifice to procure a confession. If the latter, they are like the artifice used to procure a confession from a prisoner by inducing him to believe that his accomplices had been arrested, which was held to be no ground for excluding the confession: Rex v. Burley, 1 Phil. Ev. 104, 2 Rus. C. L. 647. If the former, they are mere communications of facts and opinions which might be useful for the consideration of the prisoner in regulating her course. But in neither case can they be regarded as threats. They contain no intimation of an intention in any quarter, to punish or injure her if she refuses to confess.
The alleged promise consists of the remark made by the jailer, in the conversation referred to, that “ if the Commonwealth would use any of them as a witness, he supposed it would prefer her to either of the others.” This was no promise. There wras not even an expression of opinion, that the Commonwealth would use either of them as a witness. There was nothing in it but the supposition of a preference by the Commonwealth, upon a contingency which was left as uncertain as it was before; and it was neither stated, nor hinted, that the preference would depend upon previously making a confession. If the prisoner had acted upon that hint, it is reasonable to suppose that she would have endeavoured to make terms with the district attorney, so as to be received as a witness. But nothing of the kind-appears. On the contrary, she desirpd an interview with the mayor; and on being brought before him, she was repeatedly cautioned by that officer not to criminate herself, and was informed that anything she might say might be “used in evidence against her.” Here was a very significant intimation] that instead of being received as a witness against others, she would herself be placed on trial for her life. She answered, “I understand you.” When the caution was repeated she replied, “ I am going to tell the truth and the whole truth with regard to this matter, if I hang for it.” From this expression it might be very fairly inferred that she was making the confession, not for the purpose of saving her life, but with the knowledge that it would put her in still greater peril of the gallows. The confession was then received by the mayor, and reduced to writing. The several parts were read over to her from time to time as the writing progressed, and, when it was finished, the whole was read over to and signed by her. This -is *437the substance of the preliminary testimony, stated in the bill of exception. The judge, in overruling the motion for a new trial, states, that “nearly every fact it contains was proved by other witnesses before her statement was offered in evidence.” But as the proofs thus referred to by the judge, are not set forth in the bill, we can take no notice of them. The confession being admitted, the court instructed the jury that it was not evidence against the other prisoners.
It is impossible to reconcile the decisions on this branch of the law; and the reason seems to be, that reporters and elementary writers do not always bear in mind the true test on which the admission or exclusion of such evidence depends. In 1792, when Chief Justice McKean was presiding, the Supreme Court of this state declared, that “ the true point for consideration is, whether the prisoner has falsely declared himself guilty of a capital crime:” Commonwealth v. Dillon, 4 Dall. 117. In deciding this point the chief question is, whether the inducement held out was calculated to make the confession an untrue one. If not, it will be admissible: Wh. C. L. 318; Arch. C. P., 9th ed. 110; 2 Rus. C. L. 845; Rex v. Thomas, 7 C. & P. 345. This is a question of fact to be determined, in the first instance, by the court. In the great variety of circumstances existing in the numerous cases reported, it is natural that there should be some diversity in the decisions upon them. But the principle is well settled that where the admissibility of evidence depends upon a preliminary question of fact, to be tried by the court, its decision is not to be reversed unless in a case of clear and manifest error. The court that sees and. hears the witnesses, must be presumed to have better means of judging, on a question of fact, than the appellate tribunal, where the witnesses are neither seen nor heard, and where it often happens that their testimony is very imperfectly reported. A majority of the judges of this court are of opinion, that they see no error in admitting the confession of Charlotte Jones.
Fife and Stewart have no legal causé of complaint, because it was not admitted against them, and the court did all that could be done on a joint trial to save them from being injured by it, when they directed the jury not to regard it as evidence against any one but Charlotte Jones herself. It may be that it had, nevertheless, some influence on the minds of the jury against them, because it implicated them as the chief actors in the horrid crime charged. But; when several are tried together, competent evidence against one cannot be excluded on the ground that it may prejudice the rest. There is no perfect escape from such a prejudice but that of granting each prisoner a separate trial. It is unnecessary to express an opinion on the right of prisoners, in cases where peremptory challenges are allowed, to demand separate trials, if they sever in their pleas, and make their demand *438in due time: United States v. Sharp, et al., 1 Pet. C. C. 118; Commonwealth v. Drew & Quimby, 4 Mass. 391; People v. Howell, 4 John. 301; People v. Vermilyeu, 7 Cowen 138. When the question properly arises it will deserve the most serious consideration. In this case there is nothing on the record to show that the claim was made and denied. No admission of the judge in overruling the motion for a new trial can be substituted for the orderly statement on the record of the time and circumstances of each material step in the progress of the cause.
It is said that when the confession of Charlotte Jones was read the names of Eife and Stewart were omitted. This was doubtless done to protect them from being affected by the statements of their co-defendant; and that course is not without countenance on the books on evidence : 1 Phil. Ev. 108; 2 Russel on Cr. 365. The better opinion is, that all the names and every word must be read just as it is, and that the court should tell the jury that the confession is not evidence against any one besides the person making it: Rex v. Clewes, 4 Car. & Payne 221; 19 Eng. Com. Law, 354. But as no exception was taken to the decision, if any such decision were made, we have no right whatever to reverse for the supposed error. The bills of exception are the only record of the decisions of the court in admitting or rejecting evidence. The charge is nothing more than a record of the instructions given to the jury. We cannot make either answer the purposes of the other. A mere reference in the charge to a piece of evidence given on the trial does not warrant us in presuming that the evidence was objected to at the time. This must appear by the bill of exception, and, in the absence of it, the presumption is that the evidence was admitted without objection.
It is made matter of complaint that the judge, in his charge, among other remarks, said that “ he who is to pass on the question (of guilt or innocence) is not at liberty to disbelieve as a juror while he believes as a man.” Notwithstanding the high authority which sanctions the use of this language, it is possible that some jurors may occasionally be misled by it. Men, in their social conduct and business transactions, often act on bare suspicion, without evidence, and this, some jurors might possibly suppose, is what is meant by their belief as men, contradistinguished from their belief as jurors. But it is impossible for us to supply jurors with intelligence and judgment, and equally out of our power to prescribe to the courts below the language which the judges are to use in communicating instructions. The judge who endeavours to express his thoughts in a style so plain and simple that he will be readily understood by the most unlearned men on the jury, best performs this part of the duties of his high office. The question for us to decide, however, is not whether the court made use of the language best understood by the jury, but *439whether instructions have been given which are erroneous in point of law. It must be remembered that jurors are men, and that it is because they have human hearts and sympathies and judgments that they are selected to determine upon the rights of their fellow-men. If they were more or less than men they would not be the constitutional peers of the prisoner, and would be disqualified to decide his cause. The term “jurors” means nothing more than twelve men qualified and sworn to try a cause according to the evidence. Their oaths as jurors rest on their consciences as men, and as men they are accountable to God and their country for their verdict. Nothing more is demanded of them as jurors than an honest exercise of their judgment as men. The evidence which produces conviction on their minds in one capacity works the same result in another. Their belief is the same in both. There was therefore no error in law in adopting the language used by Chief Justice Gibson in The Commonwealth v. Bridget Harman: 4 Barr 273.
It is assigned for error that the court told the jury that the defence for alibi “ admits all that the prosecution alleges to be true,” and that “ Stewart must account to you for his whereabouts from the time he left his bed until he was seen in the morning.” If we are to construe this as an instruction that by making this defence the prisoner changed the burthen of proof under his plea of not guilty, and waived his right under that plea, to demand from the Commonwealth full proof of his guilt, we should be bound to say that it was a cruel and monstrous misapprehension of the law. But the charge, although not as free from ambiguity on this point as could be desired in a capital case, will not, when carefully examined in all its parts, admit of such a construction. When the judge made the remarks complained of in these assignments, he was speaking of the defence of alibi alone, and is to be understood as saying that, for the purposes of that particular defence, the burthen of proof was thrown upon the prisoner, and the allegations of the prosecution are admitted to be true. In this we cannot say that there was error. In Wills on the Rationale of Circumstantial ^Evidence, p. 115, the author, speaking of the defence of alibi, says that “ a resort to that kind of evidence implies an admission of the truth and relevancy of the facts alleged,” 41 Law Lib. But it is very clear that a resort to that kind of evidence neither changes the burthen of proof on the other questions in the cause, nor in any manner entitles the Commonwealth to a verdict against the prisoner without proof of his guilt beyond reasonable doubt. This we understand to be the doctrine of the court below. The judge told the jury that “ the law exacts a conviction wherever there is legal evidence to show the prisoner’s guilt beyond a reasonable doubt” — that “ circumstantial evidence is legal evidence,” and that “ the jury are the judges of the effect *440of the evidence.” He then asks, “ do the facts and circumstances of this ease point'with moral and legal certainty to the prisoners on trial as the guilty agents, in exclusion of any other reasonable supposition or hypothesis deducible from the evidence f” Here was certainly an intimation, which any intelligent jury might understand, that the evidence to justify a conviction must “point to the prisoners as the guilty agents with moral and legal certainty,” and that it must be strong enough to exclude every other supposition deducible from it. This was a recognition of the fundamental rule in deciding upon circumstantial evidence, which is, that the circumstances must not only all concur to show that the prisoners committed the crime, but they must he inconsistent with any other rational conclusion: Wharton's Cr. L. 343, note 4. But the judge, in various parts of the charge, made other remarks to show that the cause was put to the jury on the whole evidence, and not on the implied admission arising from a resort to the particular defence referred to. A majority of the judges of this court are of opinion that no substantial error in law has been pointed out in the charge.
The panel of jurors is annexed to the venue, and signed by the sheriff and commissioners. If this was regarded as no return, the prisoners should have objected to it before going to trial. A trial on the merits is by virtue of the Act of 1814 a waiver of this objection: 10 Harris 94.
It is complained that the verdict is joint and not several. The verdict finds each prisoner guilty by name. It is true that it may be called an entire thing, though it includes the case of several persons. Yet it is a whole consisting of parts essentially distinct, so that in substance there are as many verdicts as there are defendants. Each prisoner had a separate right to poll the jury as to his particular case, and there is nothing in the form of the entry to show that this, or any other right peculiar to each prisoner was denied: Commonwealth v. Cook et al., 6 S. & R. 581.
On a careful review of all the errors assigned, a majority of the judges are of opinion that no legal ground has been shown for reversing the proceedings.
It is considered and adjudged that the sentences severally pronounced against the plaintiffs in error be and the same are hereby affirmed.