This is an appeal from a judgment of conviction in the city court of Montgomery, in a criminal case, upon a charge of horse stealing. The accused, Andrew Johnson, was found guilty of grand larceny, and sentenced to perform hard labor for the county of Montgomery for the term of three years, beginning on the 17th day of July, 1871. From this conviction and judgment he appeals to this court.
There is a bill of exceptions in the record, and an assignment of numerous errors; but in such an appeal, it is the duty of this court to examine the whole record, “ and render such judgment on the record as the law demands.” — Rev. Code, § 4314; Brazier v. State, 44 Ala. 387. In doing this, the court will be careful to ascertain that the accused has not been “ deprived of his life, liberty or property but by due process of law.” — Const. Ala. Art. I, sec. 8; Const. U. S. Art. V. In a criminal prosecution, “ due process of law ” means a procedure according to established forms. The record in the cause must show that those forms have been complied with, because the record is the only proof of what has been done in the court below. — Pasch. Anno. Const. U. S. p. 258, et seq., and cases there cited; Rev. Code, § 767, cl. 9; 2 Burr. Law Dict. p. 386, Record; 3 Bla. Com. 24, Cooley’s ed. 1871. This record can not be contradicted. It is to be taken as the whole *66truth of the matter upon which it speaks. — Deslonde & James v. Darrington’s Heirs, 29 Ala. 92; Beverly v. Stephens, 17 Ala. 701. The record in this case shows by its recitals that the jury were .improperly and illegally sworn. The recital is in these woixls: “ Thereupon came the jury, to-wit, E. B. Randolph and eleven others, good and lawful men, who being elected, tried, and sworn to well and truly try the issue joined between the State of Alabama and the defendant, on their oaths do say,” &c. The “ oaths” upon which the verdict was based was evidently that set out in the record. The court can not presume any other, because this would contradict the record. The “ oath ” thus recited is not the oath required by the statute. The statutory oath imposes upon the jury a most solemn responsibility “well and truly” to “try all issues submitted” to them, but they must also “ true verdict render according to the evidence.” — Rev. Code, § 4092; 4 Bla. Com. 355. Under the former oath the jury are not bound by the evidence; under the latter they are. A trial so conducted is erroneous.— Joe Johnson v. State, at present term. Such distinctions may sound to uncultivated ears and minds, impatient of a nice sense of legal certainty, as a little hypercritical; but a sterner logic, and a reason that is determined to be controlled by the legislative- will, have always acknowledged their importance. Via trita est tutissima. — 10 Coke, 142; 5 Pet. 223; 4 Maule & S. 168. And this is the rule, especially when life and liberty are concerned. Where the statute is peremptory, as in this case, if the courts can be permitted to depart from its requirements at all, there is no limit to their peregrinations. A little carelessness, now and then, in the clerk who enters the minute of the judgment and the judgment itself, will soon make a new code, or such a judicial jumble as shall defy the law itself.— 1 Tidd Pr. 47, et seq.; 3 Chitt. Gen. Pr. 53-56. This certainty, or nicety, if it should be so called, is no novelty to our laAV. In criminal cases it has always been insisted on by the ablest judges. On a case before Chief Justice TindaXi, the accused was indicted for stealing “ three eggs of the value of two pence;” he quashed the indictment, be*67cause it was not stated what land of eggs they were. Eor all that appeared in the record the eggs might be adder’s eggs, or other eggs which could not be the subject of a larceny. — R. v. Cox, 1 Car. & K. 494; 1 Arch. Cr. Pl. 88, et seq.
Eor the error above pointed out the judgment must be reversed and remanded.
The other assignments of error hardly need to be discussed, as those which are founded on the action of the court in refusing to arrest the judgment are not likely to occur a second time.
The fact that the horse alleged to have been stolen failed to return at night to his stable, is evidence, however slight, that something had occurred to him which' had occasioned this change in his habits. If the horse was afterwards found in the possession of the defendant, it was proof in that connection that he had been taken by the defendant, and taken in the county of Montgomery. Eor this purpose it was competent. But it could only be proved in the proper way; by a witness who knew the fact. It could not be proven by the declarations of such witness. The declarations of the wife of the prosecutor and of his family were improperly admitted. They were mere hearsay.— 1 Greenl. Ev. §§ 99, 100.
The confessions of the accused were wholly voluntary. There was no inducement held out to him to make them. They were properly admitted. — Regina v. Baldry, 2 Lead. Cr. Ca. 164; 1 Greenl. §§ 219, 220.
The judgment of the court below is reversed, and the cause remanded for a new trial. And the defendant, said Andrew Johnson, will be held to answer the indictment against him until discharged by due course of law.