majority">Mr. Justice Trotteh

stated the case and delivered the opinion of the court.

The statute óf 1836 regards the criminal court as an inferior court, and so designates it. it makes it an inferior to the circuit court by conferring upon the latter the authority to bring the record of any prosecution pending in the former, before them by a writ of certiorari whenever it is made to appear that injustice is likely to be done in the criminal court, and the circuit court upon the removal of the record into it, is vested with full power to hear and determine the cause. The circuit courts are thus invested with full supervisory and controlling power over this court, and is thus superior to it, according to the rule insisted on by the counsel for the prisoners. But the criminal court is inferior in point of jurisdiction in another sense, and in the sense of the constitution, as we think. It is a tribunal of limited jurisdiction, its powers being confined exclusively to criminal proceedings. It has no civil jurisdiction, and is therefore inferior to the circuit courts. It is inferior to the High Court of Errors and Appeals, because a writ of error lies directly to it from the appellate court. In this point of view the circuit courts are also inferior, and are so termed in the constitution. It is not essential in order to sustain the authority of the legislature to. create this court, to consider it inferior in relation to the circuit courts, or to any other court created by the constitution save that of the court of errors and appeals. For we apprehend that the power to establish and to abolish “ all such inferior courts” as the legislature may deem necessaiy, is unlimited, save by the enumeration which the constitution itself has made of particular courts. .Such as are included in the enumeration, are of course beyond the reach of legislative control. Beyond the enumeration, the power is plenary, to create as many jurisdictions inferior to the court of errors and appeals as may be deemed exnedient. The constitution of 1817 *29vested the judicial power of the state in one supreme court, and such other inferior courts of law and equity as the legislature should from time to • time establish; The legislature afterwards created a chancery court, and also a court of probates; The powei’ to establish the.orphan’s and probates court under the old constitution, was never doubted, notwithstanding it Was vested with a very large portion of the mass of powers confessedly cognizable in a court' of chancery, It was inferior to the court of chancery. It was inferior-to the court of chancery in the amount of its jurisdiction, and.because that court possessed the p'ower to revise its decrees; and it was inferior in its. relation to the supreme court. It was therefore one of the inferior courts authorized by the constitution. The new constitution of 1832, has by express enactment established the probate court, and defined its¡ jurisdiction. Yet it will scarcely be insisted, if is presumed, that if it had not done so, that the hands of the legislature would be tied up against its creation. And yet in regard to many subjects of its jurisdiction, it bears the samé relationf o .the chancery court, which the criminal court does to the circuit courts. We are therefore clearly of Opinion that this is fairly embraced in the provision of 24th section of the 4th article of the constitution, and is a constitutional court.

2. It is next assigned for error, that the court below refused to set aside the special venire facias which-issued from the criminal court of Jefferson county. The first section of the act of 1836, entitled- an act to amend the jury laws of this, state, “ enacts that no challenge to the array shall be sustained,.nor shall any venire facias be quashed by any court of justice in this state for any cause whatsoever, except for corruption in the officer who may summon the jury. But there was no objection made to the sheriff,, nor any improper conduct charged against him. The objection was merely to the form of the process, and was therefore properly disregarded. '

3d.. The next error which we deem proper to be noticed, is the refusal of the judge who presided on the trial of this prosecution, to notice the exception which was taken to him on 'the ground of interest. He had previously, and whilst engagéd in the practice of the law, been consulted and retained as counsel for the state *30by the prosecutor. The trial aud conviction were had before he came upon the bench, and he did not consider himself precluded either by law or official delicacy from pronouncing the mere judgment of the law. Whatever might have been the more discreet course for the judge to pursue in these circumstances, or whether the reasons which influenced him were good, we are not required to decide. It is very clear that it was a question of discretion which belonged to him, and for the exercise of which his course is not subject to review in this court. We recognize the soundness and utility of the maxim, that a judge should never sit to hear any cause when he is interested, nor when from any,other circumstances his mind may likely have received any bias or prejudice for or against either party. And we may be indulged to remark, that a judge should never act when there can be any just ground to impute partiality or prepossessions either way. For as was very justly remarked by the judge who delivered the opinion of the court in the case of Lyon v. The State Bank, reported in 1 Stewart’s Ala. Rep. 464, where the same question was before the court, “ The spirit of the law, the dignity of the state, and the reputation of the judiciary demand purity in the arbiters, and impartiality in the administration of justice.” It was in view, no doubt, of these considerations, that the statute law of this state has prohibited the judges from deciding causes in which they may have previously been interested as counsel. But sensibly as we may feel the influence of these reflections, and much as we may deplore the example, if it shall ever be set up, of a judge rvho will boldly venture to sit in judgment upon the life, the liberty or the property of the citizen, in circumstances calculated to create an interest deeper than that which arises out of a sense of the duty and responsibility of his station, we, yet, have no power to interpose. Redress by the party injured, can only be had in other forums, and the evil whenever it shall happen, can only be cured by an application of the powers of the other departments of the government. It is highly probable, in this case, that the judge did not conceive that there was any scope for the exercise of any power in which his discretion as a judicial officer was involved. But be this as it may, his judgment cannot for that reason be reversed. For it is well settled, that a “judge shall not be excepted *31against or challenged or have an' action brought against him for what he does as1 j udge.” 1 Inst. 94. The supreme court of Alabama held this principle in the case before- noticed of Lyon v. The Bank. The action was brought in the county court by the Bank, and the judge who tried, the cause then was -one of the directors of the Bank. The defendant challenged him-on the ground of interest, but he refused to notice the objection and gave a judgment for the Bank. This was assigned as error on an appeal to the supreme court, but it >vas riot sustained. And there is a very obvious reason given for it. There is no tribunal adequate to decide a challenge to the judge when mhde in his own court..

4th. The next error we shall notice,'is the conduct of the judge in refusing to allow the plea of non-identity. The correctness of this assignment of error depends upon the goodness of the plea. This plea, which • in practice, is interposed ore tenus at the bar of the court, is never allowed except in cases where the prisoner has escaped after verdict and before judgment, or after judgment and before execution. In this case it should not ’have been received, because the record does' not show any escape. The prisoners were constantly in custody. It was therefore properly treated as a nullity. 1. Chit. Cr. L. 776. 3 Burr, 1870.

5th. The next assignment of error in the order we choose to consider them, is. the refusal of the , court below to instruct the jury as .asked by-the prisoner," “that if at the time of committing the burglary laid in the indictment there was light enough to discern a man’s face, it was not burglary.” The only question in regard to time in prosecutions for this crime, is whether it was committed in the night time. The instruction asked does not present that question. The light of the moon may sometimes be ‘sufficiently brilliant even at the still hour of midnight, to enable a man to discern another’s face and to recognize his features. The instruction was properly refused.

6th. It is next assigned as error, that the record or caption of the indictment does not state by what judge, or at what place in Adams county the court was holden at which the indictment was found, nor by what jurors, or by what number of jurors it was returned. The caption, after giving the style of the court, and the *32term, proceeds to state that “the grand jury came into court and presented the following bill of indictment, and say they are content that the court shall alter therein any thing, the same being matter of form and not of substance.” And then it terminates nor does the record in any other part of it, show of what number the grand jury consisted, or who they were, or how they were brought into court. It is the business of the caption of an indictment to state with sufficient certainty not only the style of the court, the judge then presiding, but the time and place when and where it was found and the jurors by whom it was found. 1 Chit. Cr. L. 326. 2 Hawk. 346. There is wanting, in this record, a statement of the facts essential to confer jurisdiction upon the court below. And little as we feel disposed to entertain objections to form, yet we feel constrained in cases, highly penal like this, to insist upon the observance of those rules which the constitutional law of the state has prescribed. No court is authorized to put the most humble citizen upon his trial for any capital or infamous crime, until a grand jury of the proper county, organized as the law directs, has preferred a formal accusation against him. Does the record in the Jefferson criminal court inform that court that these prisoners had been thus accused? It does not. ■ And we therefore conclude that the indictment is bad for that reason. There are some errors assigned which we do not deem it necessary to notice. It is proper for us however to observe, that the judgment must be reversed on another ground. The. act of 1S39, which was in force when the judgment was rendered m the court below, alters the penalty of this offence, and for the capital punishment under the old law, substitutes confinement in the penitentiary of the state for a longer or shorter period, according to the degree in which it has been committed. The statute defines three degrees of this crime, by particularly declaring the circumstances which constitute either the one or the other, and before any judgment can be pronounced, it must be ascertained by verdict in which of these degrees, the defendants are guilty. The judgment must be reversed, and the prisoners remanded for further proceeding.

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