1. The record discloses that the trial, verdict, imposing sentence, and rendition of judgment, was a continuous transaction at all parts of which the defendants were personally present. It is expressly stated that on the return of verdict of guilty, the defendants were in court, and were each asked, if he had any thing to say, why the sentence of the latu should not he passed upon him, and he had nothing to say — the sentence and judgment immediately following. We cannot agree with counsel that it does not necessarily follow in the face of this recital that the defendants were in court, not only when the verdict was returned, and when they were asked if they bad anything to say why sentence should not be passed, but also, when sentence was passed and judgment was rendered. It was not necessary to affirm their continuous presence, at each step in the cause, especially when the only authority to depart from the court, succeeds the sentence and judgment, in an order to the sheriff to take them to jail, and thence to the penitentiary, in execution of the sentence and judgment.
2. There is no reason to doubt, that if the judge of the Circuit Court, inadvertently, or from error of judgment, after argument, admitted illegal evidence, or rejected legal evidence, and during the trial, became satisfied of his error, that it was not only his right, but his duty, to correct the inadvertence or error, by withdrawing from the jury the illegal evidence, or admitting for their consideration the legal evidence. Whether the inadvertence or error was favorable or adverse to the accused in a criminal prosecution, is not a test of the. right and duty of the judge. The law favors the accused in all criminal prosecutions, and extends to him many rights and advantages the courts are careful to maintain, though they may seem in the particular case, to embarrass the administration of justice. Of these, however, is not the right to compel the court, during the trial, to persist in *375tbe error of admitting for him illegal evidence, or of rejecting legal evidence against bim. The error of the court in admitting, or rejecting, does not change the character of the evidence.
3. It was certainly proper for the defendants to show, that if the offense had been committed, Daniel Smith, jointly indicted with them, but not on trial, was the guilty agent in its commission, and that they were free from all guilty connection with it. This must, as must any other material fact, have been shown by legal evidence. Smith’s declarations of his guilt, and of the innocence of the defendants, certainly seem evidence of great weight in favor of the defendants. But suppose it is admitted, and in the judgment of the jury, outweighs the evidence against the defendants,, and they are acquitted ? Smith is arraigned for the offense, and proves the declarations of the prisoners, that they committed the offense, and he is free from all complicity with it. Each, by the mere verbal declarations of the other, in the absence of all opportunity for cross-examination, has afforded evidence which results in their mutual exculpation. Or, the defendants having been acquitted, protected by the justice and the humanity of the law from further prosecution, could become witnesses for Smith, proving their guilt and his innocence. Or, suppose Smith is arraigned, and shows, as it would be his right to show, that the witnesses misunderstood his declarations, or that they were carelessly, and loosely made, and are, in fact, untrue, unless connected with other evidence of guilt, his acquittal must follow. Such declarations are hearsay evidence, the weakest, most uncertain, and most dangerous, and were by the court properly.rejected. — Smith v. State, 9 Ala. 990.
We find no error in the record, and the judgment must be affirmed.