¶1This case will be disposed of on the ground of the incompetency of the person who presided as judge at the trial of the plaintiff in error. The attorney general, in argument, admitted that in capital cases no such substitution can take place, as was done in this case, and this court is of that opinion. A circuit judge, regularly elected and qualified, is the only person qualified to sit in criminal cases. The constitution and laws of the state have made ample provision for the trial of all cases. Where a circuit judge is rendered incompetent to preside in any particular case, a judge from another circuit can be called in.
¶2The constitutional modes of appointment must be observed strictly ; and we do not consider that the legislature, by the act of 1841,217, in prescribing that the provisions of the act of 1840, made in relation to the chancery court, which has jurisdiction only in civil cases, intended to apply the provisions of that act to criminal cases; and jurisdiction in capital cases cannot be taken or exercised by mere inference or analogy.
¶3If this point was seriously controverted, it might be proper for the court to give a more full and detailed opinion.
¶4The judgment is reversed, and the prisoner remanded to Franklin county, and a venire de now awarded.