JUDGE, J.
[1.] The act of October 7, 1864, under which the prisoners were tried and convicted, was ratified *688by the State convention on the 21st day of September, 1865; a day anterior to the commission of the offense. It has been decided at the present term, that from the date of its ratification that statute has been in force in this State; (Jeffries & Jeffries v. The State;) and we hold that it is applicable to all persons in the State, the class known as freedmen included.—Eliza v. The State, decided at the present term. Consequently, there was no error in the charge given, nor in the refusal to give the charge requested, relating to this act.
[2.] The court was requested to charge the jury, that if they believed “ that Ely, when asked the price of the horses, said that he did not know the price, that another man had the selling of them, (referring to Aaron,) that the words in answer were sufficient to rebut the presumption of guilt arising from Ely having been found, in company with Aaron, in possession of one of the horses, as detailed by the witness.” The bill of exceptions does not purport to set out all the evidence; and if this charge appeared on its face to be legal and proper, still the intendment would be, that there was other and sufficient evidence, to justify the court in refusing to give it. Error will not be imputed to the court below, when it does not affirmatively appear.—Eskridge v. The State, 25 Ala. 30; Butler v. The State, 22 Ala. 43; McElhany v. The State, 24 Ala. 71; 25 Ala. 57. But the charge, on its face, was improper, -in asking the court to invade the province of the jury, by deciding on the sufficiency of evidence to rebut the presumption of guilt arising from other evidence.—King v. Pope, 28 Ala. 602; Stanley v. Nelson, 28 Ala. 514. It was properly refused, too, for another reason. The record shows that there was other evidence in the case, affecting the prisoner Ely, than that of his having been in company with Aaron in possession of one of the stolen horses; for instance, the proof of his residence in the vicinity of the theft, which was likewise the residence of Aaron ; and his silence, or failure to account, when arrested, for his possession of one of the stolen horses. Thus, the charge selected from the evidence a portion only of the facts disclosed tending to prove the guilt of Ely; and, had it been given, it would have restricted *689tbe jury, in considering tbe presumption of guilt, to tbis selected portion of tbe testimony.—Ogletree v. The State, 28 Ala. 693.
[3.J Tbe proof tended to show that tbe borses were stolen in tbe county of Perry; and it appeared in evidence that they were found in tbe possession of tbe prisoners, in tbe county of Tuskaloosa. Tbe indictment was properly found in tbe latter county; for, with respect to larceny, tbe offense is considered as committed in every county, or jurisdiction, into wbicb tbe tbief carries tbe goods; tbe legal possession of them remains in tbe true owner, and every moment’s continuance of tbe trespass and felony amounts to a new caption and asportation. Unde, tbe Code, (§ 8514,) it was not necessary to state tbe venue; L t tbe statement of it was sustained by tbe proof.
[4.] Tbe court below bad jurisdiction of tbe case, altbougb tbe indictment was found, and tbe case tried at a special term.—See Act of 27th November, 1865; Code, § 634; Acts 1863, p. 20; Nugent v. The State, 19 Ala. 540; Harrington v. The State, 36 Ala. 236.
[5.] It does not appear by tbe record that tbe court, before pronouncing sentence upon tbe prisoners, inquired of them if they bad anything to say wby tbe sentence of tbe law should not be pronounced upon them. By tbe common law, tbis is an indispensable question in all cases of conviction for felony. In The King v. Spekes, (3 Salkeld, 358,) a judgment in a prosecution for high treason was reversed, because tbe court did not ask tbe defendant, before pronouncing sentence, “ wbat be bad to say for himself, wby judgment should not be given ?” Tbis is a necessary question, said tbe court, because be may have a pardon to plead, or may move in arrest of judgment. Tbe like decision was made in Rex v. Geary, (2 Salkeld, 630,) altbougb tbe defendant bad pleaded guilty to tbe charge. In 1st Arcbbold’s Criminal Pleading, (pp. 180-1, note 4,) it is said: “ Before judgment is pronounced upon tbe defendant, it is indispensably necessary that be should be asked by tbe clerk, or court, if be has anything to say wby judgment should not be pronounced on himciting 1 Chitty’s Criminal Law, 700. In West v. The State, (2 New Jersey, 212,) *690it was thought not necessary to ask this question, except in capital cases; but, in the later case of Safford v. The People, (1 Parker, 474,) it was considered essential in all cases of felony. — -2 Leading Crim. Cases, 452, note. Indeed, the current of authority is very decided, as to the indispensable necessity of making this inquiry, in all convictions of felony. It is not a mere form, but is a substantial right, given by the law. If a prisoner has no ground to allege in arrest of judgment, no pardon to plead, he may addresss the court in mitigation of his conduct, desire its intercession with the pardoning power, or cast himself upon its mercy.—1 Archb. 180-1, note 4. And it is -easy, in all such convictions, to propound the question, and to let the record show it.
In this case, the record shows that sentence was pronounced upon the prisoners; but it is silent as to whether the question was asked. A majority of the court believe that it is our duty to presume that the question was asked; and they cite the following authorities in support of their opinion: Paris v. The State, 36 Ala. 232; Ben v. The State, 22 Ala. 9; State v. Williams, 3 Stewart, 454; Harrington v. The State, 36 Ala. 236. While these authorities are very persuasive to authorize the conclusion drawn from them by my brothers, yet they relate principally, if not entirely, to preliminary steps in the prosecution; and presumptions may the more readily be drawn against a prisoner, for not objecting or excepting to omissions and irregularities in these preliminary steps, when he is attended by counsel, and has' a far better opportunity for thus excepting, than when brought to the bar to receive his sentence, not always attended by counsel, and in a distressed and dejected condition. Therefore, I would not be for extending the authorities above cited, beyond application to similar cases. For I hold, with Chief-Justice Gibson, in Hamilton v. The Commonwealth, (4 Harris, 129,) the omission from the record in that case having been identical with the omission in this, that “ the forms of records are deeply seated in the foundations of the law, and as they conduce to safety and certainty, they surely ought- not to be disregarded, when the life of a human being is in question.’’ And in the language of another eminent judge of the same State, “If we let in *691presumptions to supply omissions and defects in records, it will by and by be deemed scarcely necessary to show by the record any of the important safe-guards of the trial by jury; and tbe common-law forms, stoutly asserted as a shield of liberty, by the Hampdens, Eussels, and Sidneys, of other days, will lose their value. ”—Dunn v. The Commonwealth, 6 Barr, 384.
A majority of the court differing from me as to the presumption to be drawn from the record, in relation to the point last discussed, it results that the judgment of the circuit court must be affirmed, and the sentence of the law executed on both the prisoners.