(dissenting.) — But for the decision in this case, I would have thought there ivas no doubt that a judgment of conviction and sentence in a capital case could not be supported on appeal, unless the record proper showed an order of the court, setting the day for trial and directing a special venire for the trial, or a waiver thereof, made in the mode prescribed in the mandatory statutes on the subject. There are scores, if not hundreds, of cases holding to this effect, and none to the contrary except this one. This is certainly a radical departure from all former decisions of *29this court upon this subject; and there are many of them which this, in effect; overrules. Heretofore, without exception, this has been said to be as necessary a part of the record, to support a conviction, in a capital case, as the indictment, the verdict, or the judgment. It has been repeatedly held that no one of these can be omitted from the record -proper without working a reversal. One is no more important than the other. If one can be omitted, then all can be omitted, provided they are shown by parol or the bench notes.
The mandatory statutes require, and the Constitution guarantees, not that these requisites shall exist, but that they shall appear of record proper, and not otherwise. It is therefore just as necessary that these matters appear of record proper, as it is that they exist. They are not matters that can be waived, except those provided for in the statute, and then only in the mode prescribed by the statute, which is that the waiver must be in writing and appear of record proper. These matters of record cannot be dispensed with — not even at the direct request of the accused. He cannot consent to the omission of any of these requisites from the record in a capital case, so as to cure the error. A man cannot legally consent to be tried for a capital offense without an indictment; nor to be convicted without the verdict of a jury required by law; nor to be executed without a judgment and sentence of the law authdrizing such execution. These requisites are not subjects of waiver, nor of control by consent or agreement.
The majority in this case have treated a solemn judgment and record of a court authorized to inflict capital punishment as a mere ministerial act of a judicial or clerical officer of the court. If the defects in this record were mere clerical omissions or misprisions, I would readily agree with the majority; but they are not *30sucli errors. They concern matters of record proper, without which there can he no valid judgment or sentence, matters which absolutely admit of no waiver, consent, or substitution, matters the sine qua non of a valid judgment of conviction or sentence in a capital case. It has been repeatedly asserted by this court that these requisites in capital cases are of prime importance to a prisoner in securing his constitutional guaranty that “the right of trial by jury shall remain inviolate.” The acts complained of in such cases are acts of the court, not those of the judge or the clerk, and for this reason they have always by all English and American courts been considered parts of the record essential to support the judgments of conviction in such cases, and they must always affirmatively appear from the record itself — not from the bill of exceptions, the bench notes, or memoranda — to have been performed by the court. The forms and the substance of the records in capital cases are thus deeply imbedded in the foundations of our law; and, as has been well said by this and other courts, they ought not to be disregarded, certainly not when the liberty or even the life of the citizen depends upon such record.
As to these matters, it has been uniformly ruled (without a solitary exception, so far as I know) by this court that a prisoner charged with a capital offense who proceeds to trial without objection as to these acts which are required to be performed by the court, and which are required to be made a part of the record, in order to support a judgment of conviction and sentence, does not thereby waive his right to insist upon such defect in the appellate court, although no objection was made and no question' raised as to such matters in the lower court. As was said by this court (Spicer’s Case, 69 Ala. 163), by Somerville, J.: “Unless the proper order had *31been made [referring to tbe order setting a day for tbe trial, and directing a special venire], no fair field for the exercise of an untrammeled option could be presented. We cannot judicially kno\V that a trial was not the sole alternative to continued incarceration.” It was first said by Gipson, C. J., and has often been repeated by this court, in speaking of the necessity of an order setting the day for trial and for a special venire in capital cases, that these forms of records are deeply seated in the very foundations of the law, and, as they conduce to safety and certainty, they surely ought not to be disregarded when the liberty or the life of a human being is at stake. The record in a capital case like this is constituted of the proper and legitimate elements set down in their proper order — elements by the Constitution and the statutes made requisite to support a judgment of conviction and sentence.
As was said by this eminent Chief Justice (Hamilton v. Com., 16 Pa. 133, 55 Am. Dec. 185) : “For it is certainly not the law that all the gossip a clerk or prothonotary Avrites down on his docket ipso facto becomes the very voice of undeniable truth. The judges of a court of error must determine for themselves, and consequently on facts, instead of SAveeping assertions.” In speaking of the insufficiency of the record proper in that case, Avhicli Avas attempted to be supplemented by memoranda from the dockets, the same learned Chief Justice remarked: “There is nothing on the docket to shoAV even that the prisoner Avas present Avhen he Avas sentenced, except the supplementary memorandum that £he Avas present in the court from the time of his arraignment up to the time Avhen the sentence was passed upon him; indeed the whole trial, from its commencement to its termination, Avas according to laAV.’ ” Notwithstanding this memorandum, and the fact that it *32was made by the officer required to certify the record, it was held, and properly so (the case being frequently quoted by this court), that it did not form any part of the record, and could not be looked to for that purpose. In the language of Lord Coke: “Records are memorials or remembrances, in rolls or parchments, of the proceedings or acts of a court of justice, and are of such uncontrollable solemnity and verity that they admit of no averment, plea, or proof to the contrary. They are the memorials of the end of strife, when a dispute has been settled by the judgment of the court.” As has been well said, if it were otherwise, there would be difficulty to see where litigation would end. A matter of record can be made so only by inserting it in the record.
It was said by the Supreme Court of the United States (Taylor’s Case, 147 U. S. 695, 13 Sup. Ct. 479, 37 L. Ed. 337) that the best definition of a common-law record in a criminal case, in the American practice, is found in McKinney v. People, 7 Ill. 552, 43 Am. Dec. 65, where it is stated that in a criminal case, after the caption stating the time and place of holding the court, the record should consist of the indictment properly indorsed, as found by the grand jury, the arraignment of the accused, the impaneling of the jury, verdict, and judgment of the court. Mr. Chitty, in stating the contents of a record in a case of felony, says: “The record states the session of oyer and terminer, the commission of the judges, the presentment by the oath of the grand jurymen by name, the indictment, the award of the jury process, the verdict, the asking the prisoner why sentence should not be passed on him, and the judgment of death passed by the judges.” — 1 Chitty, Crim. Law, 719.
Of course, some of these matters are not now appropriate to our system. We have, however, statutes male*33ing other matters a part of such record, and making them necessary to support convictions in such cases. Among these requirements is the order setting the day for trial, and providing for the special venire from which the jury to try the case shall he selected. There is an entire absence from this record of any such order. This court has repeatedly held that this cannot be dispensed with in a capital case, not even with the consent or by the request of the defendant. No question as to it need be raised in the lower court, nor even in this court. Our statute requires this court to search the records for error. It does not even require the assignment of errors by the defendant, nor the filing of any brief calling attention to errors. Being thus by statute required to search the record for errors, and, if such are found, to reverse the case, it has been repeatedly decided by this court that this record proper cannot be supplemented by the bench notes nor by parol evidence; that the record itself, alone, must avouch its own verity, declare its own validity, or confess its invalidity; that other evidence for these purposes cannot be looked to.
How this court can affirm this judgment in a capital case, in the absence of this part of the record, I am unable to understand. The opinion it is true seems to proceed upon the theory that under the existing statutes the defendant could waive the necessity of the order, setting the day and providing the special venire; but the bench notes are the only evidence relied on to show such waiver. In this i think my Brothers have fallen into grave error, for the reason that the bench notes are not a part of the record, and cannot be made so by this court. They are not a part of the record of the lower court, and are not intended to be such, but are mere memoranda, for the aid of the court and of the clerk, in writing up the judgment and making the rec*34ord proper. They are no more a part of the record proper to support a capital sentence than the indorsements or memoranda of a grand jury upon their docket to the effect that a certain indictment was found or not found would be an indictment. Such bench notes, standing alone, are not appropriate matter for the record proper, nor for the bill of exceptions. They may be looked to in making up the record proper or the bill of exceptions, but per se are not a part of either; and, of course, cannot be considered to vary, control, add to, or take from, either the record proper or the bill of exceptions. They are often looked to or used as evidence in amending judgments nunc pro tunc; but, even after a judgment is amended in this manner, the bench notes themselves do not become a part of the. record, but remain merely evidence thereof.
It has been repeatedly held by this court that a defendant cannot waive this order of the court setting the day for his trial and ordering the special venire. The absence of such order will work a reversal, though the defendant not only consented to the omission, but requested a trial by the regular, venire for the week, and though he was acquitted of murder by being convicted of manslaughter. And his case must be reversed on appeal, though no question was raised as to the omission in either the lower court or this court. — Bankhead v. State, 124 Ala. 14, 26 South. 979; Kilgore v. State, 124 Ala. 24, 27 South. 4. It is true that section 7264 of the Code was not in effect when the Bankhead and Kilgore Gases, supra, were decided; but it was not the intention of the lawmakers, nor is it the effect of that section, to dispense with the order required to be made by section 7263 of the Code, except in the cases and in the manner prescribed by section 7264. This section merely provides that no special jury or venire shall be neces*35sary for the trial of such cases, if before the special venire has been clraivn the “defendant enters a plea of guilty or in writing waives the right of a special venire,” stipulating that “such plea of guilty or such waiver of special venire shall be entered of record.” Consequently it is just as necessary that this plea of guilty or this waiver in writing be entered of record as it is that the order shall be made setting the day for trial and for the special venire. The statute is not susceptible of any other construction, and there is no pretense in this case that such a plea of “guilty” was filed, or that such waiver was entered of record. On the other hand, the record proper absolutely refutes any such presumption, for the reason that it shows a plea of “not guilty,” and there is no mention therein of his having waived a special venire.
I think that the record of this court in the concrete case bears out my position as to the insufficiency of the record to support a judgment of conviction and sentence. At a former term of this court, on a call of this case, it was contended that, because of this defect in the record, a certiorari should issue to the trial court to send up a complete record, which writ was awarded; and in response thereto the clerk of that court certified to us that the record was complete, that the only, thing tending to show a waiver of a special venire was certain bench notes upon the trial docket, which, as shown above, cannot be considered by this court as part either of the record proper or of the bill of exceptions. It is matter foreign to the record in this court, whatever effect might be given to such notes, in the lower court, on an application to amend the judgment nunc pro tunc. I submit that it is a reasonable presumption that if the record could have been amended in the court below, so as to support the judgment, it would have been so *36amended, and, as amended, would have been certified to us in response to the certiorari issued for that purpose.
I am aware that there is much complaint in these days against appellate courts on account of what is termed “reversals on technical errors.” To many this defect may seem a technical error; but, if so, it is not the fault of this court nor of any other court. The fault is in the law, which it is the duty of the courts, not to make, but to construe and declare. As answering such complaints, the words of Gipson, C. J. (Commonwealth v. Lesher, 17 Serg. & R. [Pa.] 164), are very apt, and his language has been several times quoted in the decisions of this court. In speaking of the advantages which the law has conferred upon the defendant in criminal cases, he says: “We can have nothing to do Avith the unreasonableness of this particular advantage. Our jurisprudence abounds with unreasonable advantages enjoyed by the accused. The least slip in the-indictment is fatal. A new trial cannot be aAvarded after an acquittal produced by the most glaring misdirection, and the prisoner is to be acquitted Avherever there is a reasonable doubt of his guilt. These and many other unreasonable advantages the law allows on principles of humanity or policy; and, if the Legislature chooses to throAV in the full and exclusive benefit of peremptory challenges, Avho can object? No one is more thoroughly convinced of the mischievous consequences of the act of the assembly in practice and the abstract propriety of the objection to the juror here, or is more desirous of seeing the common-laAV remedy restored by the proper authority. But feeling, as I do, a horror of judicial legislation, I would suffer any extremity of inconvenience, rather than step beyond the legitimate province of the court, to touch even a hair of any privilege of a prisoner on trial for his life. That *37Chief Justice argued very ill, who, in a capital case, admitted a jury not freeholders, saying, ‘Why may we not make precedents to succeeding times, as well as those who have gone before us have made precedents to us?’ Such an occurrence in the trial of Algernon Sydney is spoken of in terms of indignation. Were .the judges to set the hiAv to rights as often as it should differ from their ideal standard of excellence, it is a hundred to one that their corrections would not hit the taste of those who came after them; and we should have nothing but corrections, while there would be no guide in the decision of causes but the discretion of fallible judges in the court of last resort, and no rule by which the citizen might beforehand square his actions. ‘The discretion of a judge,’ said a great English constitutional lawyer, Lord Camden, ‘is the law of tyrants; it is always unknown ; it is different in different men; it is casual and depends upon constitution, temper, and passion. In the best it is oftentimes caprice; in the worst, it is every vice, folly, and passion to which human nature can be liable.’ I concede it to be one of the excellencies of the common law that it admits of perpetual improvement by accommodating itself to the circumstances of the age. But every beneficial change has been by gradations so slow as to be absolutely insensible; and to prevent even those by whom it was wrought from being conscious of it.” The remarks of Chief Justice Chilton, in Woles’ Case, are apt in this connection. That was a capital case, in Avhich the defendant was sentenced to be hanged for murder, and the case was reversed solely upon the ground of a defective warrant, under Avhich the defendant Avas arrested Avhen he committed the homicide for Avhich he Avas tried. In concluding the opinion, Judge Chilton said: “We are aware that this looks like a technical ground upon which to reverse a *38cause of this grave importance; but it is our duty to decide the law irrespective of consequences, and, being satisfied that the warrant is void, we have no alternative but to reverse the sentence and remand the cause that the prisoner may be-again tried.”- — 24 Ala. 672, 697.
If criminal cases were reversed on appeal only when necessary to prevent the punishment of innocent persons, no ground of reversal, if legal, would ever be considered technical by a just and fair people. It is because cases are of necessity often reversed when, according to public opinion, the defendant was unquestionably guilty, and had received nothing but a just sentence. It is such cases as these that cause the public to complain of reversals upon technical errors. But here no fault can be justly ascribed to the courts. They are to construe and declare the law which casts its protection over all persons alike-. The fact that a man has committed a crime does not diminish his right to the protection which the law affords him. The innocent man, equally with the guilty, is subject to arrest, trial, and punishment. If both are convicted, the law punished both, and, if acquitted, both go free. Before either can legally be made to suffer for a crime, he must be arrested and detained in the same meshes which the law has provided. The innocent and the guilty must be proceeded against alike, step by step, according to the rules and forms which the Constitution, the statutes, and the common law have ordained. The law’s forms in such cases must be pursued, or its penalties cannot be imposed. An innocent man, who, having been imprisoned in due form, breaks prison, commits as great an offense in the eyes of the law as if, being guilty, he thus escapes custody. On the other hand, a guilty man, no less than an innocent one, may refuse to be commit*39ted to prison on a warrant not conforming to the law. The law must treat all alike, whether innocent or guilty, until the judgment of the law has been pronounced upon them. An innocent man has no more rights in arrest, detention and conviction than has the guilty man. The latter in a court has the same right to protest the proceedings against him that he has to declare his innocence. In passing upon the question whether or not the record on appeal is sufficient to support a judgment of conviction and sentence in a capital case, the question whether the defendant is guilty or innocent is a matter of no concern to the appellate court. Its duty is the same in either case. It is the court’s business to see that he be not convicted except in accordance Avith the rules of procedure Avhich the law prescribed, and to see that that judgment is executed if he has been so convicted and sentenced.
In my opinion appellate courts cannot afford to disregard the forms and the sufficiency of records in capital cases to support the judgments and sentences imposed. It has been Avell and truly said that these forms are conducive to the liberty and safety of the citizen. They are created for that purpose, and the principle has been resolutely maintained, both in England and in America, by the most distinguished jurists of these countries. It is true that, when instituted, they were intended to prevent encroachments upon the crown, as well as upon the liberty of the people in times of political persecution. These forms were brought across the Avater by our fathers, and claimed as a part of their heritage of- the common law of Englandand, Avliile we have abandoned many of the common-law forms which Avere unsubstantial, Ave have never abandoned those Avhich relate to the trials affecting the life and liberty of the citizen. Our Constitutions guarantee them, our *40statutes declare them, and they still live, to protect the life and liberty of the citizen. It is very true that, if we were allowed so to do, we might as individuals safely presume that the defendant had a fair and impartial trial-in the trial court, that he there waived the rights secured to him, which the record fails to show that he so waived, and that his trial was in all things right; but, sitting here as a court, we can only look to the record, to this judgment and this record, which will be regarded as a precedent for all time, and, if we thus allow presumptions to be indulged, to supply omissions of these matters by the Constitution and the statutes required to be recorded, it will soon be deemed scarcely necessary to show by the record any of the important safeguards which thé Constitution and statutes, and the common law have so long and so strongly asserted as a shield of the liberty and life of the citizen-. It will not do to say that these forms were intended only to protect the citizen against the despotism of croAvns and tyrants; that he needs no such forms.to protect him in this state during these times. It has been Avell said by a great jurist that there is no despotism so. terrible, so cruel, and so unrelenting as that of the people themselves in times of great tumult and excitement,, Avlien passion and rage are stirred. These safeguard sr these stern and inflexible rules of laAv, are, during such times of excitement, the only protection that the accused citizen has against mock trials and judicial lynchings. In this connection it may be Avell to remember the Avords of Blackstone, Avhen comparing the English hiAV Avith that of other countries. lie said: “It Avill afford pleasure to an English reader, and do honor to the English laAv, to compare it Avith that shocking-apparatus of death and torment to be met with in the criminal codes of almost every other nation in Europe-*41And it is, moreover, one of the glories of our English law that the species, though not always the quantity or degree, of punishment is ascertained for every offense; and that it is not left in the breast of any judge, nor even of a jury, to alter that judgment, which the law has beforehand ordained for every subject alike, without respect of persons; for, if judgments were to be the private opinions of the judge, men would then be slaves to their magistrates, and would live in society without knowing exactly the conditions and obligations Avhich it lays them under. And, besides, as this prevents oppression on the one hand, so, on the other, it stifles all hopes of immunity or mitigation, Avith Avhich an offender might flatter himself, if his punishment depended on the humor or discretion of the court.” — 2 Cooley’s Bl. 376.
I am fully persuaded that the concrete error into Avhich my Brothers have fallen in this.case is that they have failed to distinguish the record in this case from those in cases like Paris v. State, 36 Ala. 232. In my opinion they have failed to observe this distinction pointed out in Spicer’s Gase cited and quoted from in the majority opinion. This distinction was again pointed out by Somerville, J., in Sylvester v. State, 71 Ala. 24, where he says: “There are feAV if any preliminary proceedings, prior to the verdict of more importance in criminal trials than the legislative details securing the right to have a fair and impartial jury. Of these the most vital in many cases often is the order appointing a day for the trial and fixing the number of jurors to be summoned. Such an order should never be made in the absence of a defendant, and Ave must not presume he was present Avhen the record omits to shoAV the fact by positive affirmation. We believe it to be the sounder rule, and the one more in harmony with the past decis*42ions of this court on similar questions, that the defect presented for our consideration is a reversible error, and that the failure of the prisoner to object was no ■ waiver. The distinction between the principle settled here, and that in Paris’s Case, 36 Ala. 232, is fully pointed out in Spicer v. State, and nothing need be added on that point. The two decisions are in perfect harmony.” In the case last mentioned the judgment of conviction was reversed, not because no order at all was made (which is a fact in this case), but because that order failed to affirmatively show that the defendant was personally present in court when the order was made, and although the prisoner failed to object to such order or proceedings upon the trial in the lower court. Since he could not be held to have waived the privilege of being present Avhen the ' order was made, surely he ought not to be held to have waived the making of any order in the premises.
This same strictness as to what the record proper should shoAV in order to support a judgment of conviction and sentence in a capital case has been uniformly adhered to by this court as to many other parts of the record proper. This court has not only uniformly reversed, because of the absence of material parts of the record, but repeatedly reversed because of mere defects, somtimes very slight, as in the last-quoted case, Avhere the record failed to show the appearance of the prisoner when the case was set for trial, or because of its failure to shoAV his presence at the rendition of the verdict, or to show that the trial judge asked him if he had anything to say as to why the senence of the law should not be pronounced upon him, or because it failed to shoAV that the jury by their verdict determined the degree of murder as the statute requires, notwithstanding the verdict found him guilty as charged in the indict*43ment, and fixed a punishment which was apt only as to one degree of murder. In another case, where the murder was committed by poisoning, and the indictment so alleged, the statute making murder by that means murder in the first degree, yet the judgment of conviction ivas reversed because of a mere defect in the record.
For these reasons, and many others Avhich might he mentioned if time and space allowed, I am fully persuaded that my Brothers are in error in their decision of this case.