1. We have often declared that in cases of discretion the action of the Circuit Judge will only be disturbed by this Court when the discretion is abused. The statute, Code, section .3480, expressly gives the Judge a discretion on questions of continuance. Surely it cannot be said, under the state of facts presented by this record, it was an abuse of a wise discretion to refuse to continue the case. To say that there was ground for continuance does not meet the case. The. question is, has the Judge shown gross mistake or a want of proper consideration for the rights of the prisoner ? Is it apparent that he has done injustice? We think not. Was the action of the Judge on this question so manifestly wrong as to indicate that his Honor was displaying undue haste, so as that the prisoner has been wronged? We doubt if there are many criminal cases that may not be indefinitely postponed on the same showing.
2. A motion to set aside a panel is, in substance, a challenge to the array, and must be on some ground that taints .the whole. The facts claimed to.be true here have only reference to some of the jurors, and we are unable to understand how it can be contended they affect the array. If the men on the panel who come within the category stated are taken off the list, there would be no objection to it. The facts no more make a ground of challenge to the panel than would the fact that there was on it a juryman disqualified from interest, bias or kinship.
3. There is nothing in section 4588 of the Revised Code confining its provisions to one side. The language is general. There is no reason why it should apply to an objection by the prisoner, and not to a case where the objection is by the State. The words of the law and the reason of the law cover both the State and the prisoner.
4. The Judge is made the trior by the statute — not this Court, and if his judgment is to be reversed here, for such reasons as this bill of exceptions presents, it results that this *607Court is the trior, and not the Judge. This Court can only interfere on questions of law, and a finding, whether of Judge or jury, is not illegal unless there be mistake, or manifest bias, or prejudice, or be based on a misconception of law. Suppose the old law of force and the verdict of competency be by triors chosen as at common law, is there any appeal from their verdict? We see no reason why, as the Judge takes their place, his decision or finding should not stand on the same ground, to-wit: be final.
5. The most that can be said of this failure to examine all the jurymen, is that there was a separation of the jury. But the defendants knew this; did not object at the time, nor did they find any fault with the purgation of the Judge until after the verdict. It is too late to make such an objection after verdict, unless it appear that the knowledge came to the defendant after verdict. Parties ought not to be allowed to take all the chances of a favorable verdict, and finding themselves mistaken in their hopes, then bring forward objections to the jury known to them at the trial.
6. Perhaps there are cases where Courts of error have granted new trials on just such grounds as this. But it seems to us that in the breaking down of the old unbending forms of the common law, by our Code, the necessity for a specific order of proceedings goes with it; that one shall be held to his announcement is in the main right. But to make such a rule so rigid as to separate it from the other rules as to order, and say that whilst the Judge may modify them as justice and the public convenience may require, he must be held to this with an iron grip, seems to us absurd. If injustice has come from a deviation from the rule, we would interfere, but there is no pretence here of that. That this privilege has, in this case, been granted to the State, and is therefore unjust to the prisoner, goes upon the idea that different rules apply. But we see no reason for this. The order of business ought, as a general rule to be pursued by both parties, and the Court ought to have the power when a proper case presents itself to modify the rule where no injustice will occur, and the public in*608terests be subserved. It is not a positive right, and unless the modification has interfered in some way with a fair hearing, we are not disposed to scan the order of the Judge with close scrutiny in such matters.
7. Without doubt, confessions must be voluntary — that is, if they are made under the hope of reward or fear of hurt, they are not competent: Revised Code, 3740. It appears from the record that these confessions were offered and no objection made by the prisoner’s counsel to their going in. We incline to think that, if objected to, it would have been the duty of the State to show the circumstances under which they were made, that the Court might see if they were voluntary. But confessions are not illegal evidence, standing alone. They are received in criminal cases on the same principles as in civil: Roscoe’s Criminal Evidence, 37; 1 Phillip’s Evidence, 397. .It is the right of the prisoner to object to their coming in, unless the circumstances under which they were made also come in; but if he or his counsel fail to object, and the confessions go to the jury without any special inquiry as to the circumstances, he is not entitled to a new trial. The witnesses, in fact, detail, apparently, all that took place, especially at the fence. Perhaps, however, had the evidence been objected to, other facts might have appeared. It was the right of the prisoner to insist that an inquiry should be made, but as he failed to do this — as his counsel permitted the evidence to go in without objection, we must take it for granted that they preferred not to insist; that they knew, as the Judge certifies he knew, from an examination he had made on the trial of Spann, that they were voluntary. Confessions are legal evidence. To say that they are illegal, unless proven to be voluntary, would, in most cases, be to lose them altogether. Unless the circumstances under which they are made show they were not voluntary, they are admissible. If they are given in and not objected to, it is too late after verdict to say that there was not a sufficient inquiry into the circumstances. And this is true, even though it was the duty of the State, in order to justify their admission over an objection by the pris*609oner, to go further and show that all the circumstances under which tfyey were made had, in fact, been proven.
8. Confessional evidence may be circumstantial. As for instance, if it be of a fact, which is itself but a circumstance, from which guilt is inferable. But, confessions may be of the fact of the crime itself — of its actual commission, or of actual aid, by the prisoner, in the commission. It is, then, direct evidence. The confession is only the mode of proof: See Best on Evidence, 396; Wills on Circumstantial Evidence, 88. One may, it is true, say that proof of a fact, or a crime, by proof, not that the witness saw it, but by proof that the accused has admitted it, is only proof of such a fact, to-wit: the confession, as justifies the inference of guilt. The evidence comes to the Court, not from the mouth of a witness who saw the fact, but from one who testifies that he has heard the prisoner say so and so. But if the saying of the prisoner be concerning the act itself, and not simply of a fact from which the act is inferred, the testimony is at last of the act, and not of circumstances. True, there is a chance that, as the Court gets the fact, through first the prisoner, and then the witness, there is one remove further from the fact than if the witness testifies to incidents of the transaction itself. The protection against mistake or error, however, is in the improbability of one free from fear or hope confessing guilt. A confession in open Court is evidence, even of treason, and it is a sound rule of law and of common sense that a free confession is very strong evidence of guilt. The confession in this case is of the‘ act itself. The prisoner, as one of the witnesses stated, admitted that she had held the hankerchief over the mouth of Mrs. Spann during a part of this horrible tragedy. It was a fearful and horrible deed. And she who stood by, aiding, even with her woman’s hand, the foul brute who thus strangled her' he had sworn to love and protect, is just as guilty as he. The stopping of the poor victim’s cries, with the handkerchief, is just as much a part of the act as the tightening of the rope.
9. It gives us great pain to be compelled by our sense of duty to the law and to the public, to affirm this judgment. We *610have, however, no sympathy, with that sickly sentimentality that springs into action whenever a criminal is at length about to suffer for crime. It may be a sign of a tender heart, but it is also a sign of one not under proper regulation. Society demands that crime shall be punished and criminals warned, and the false humanity that starts and shudders when the axe of justice is ready to strike, is a dangerous element for the peace of society. We have had too much of this mefcy. It ■ is not true mercy. It only looks to the criminal, but we must insist upon mercy to society, upon justice to the poor woman whose blood cries out against her murderers. That criminals go unpunished is a disgrace to our civilization, and we have reaped thé fruits of it in the frequency with which bloody deeds occur. A stern, unbending, unflinching administration of the ■penal laws, without regard to position or sex, as it is the highest mark of civilization, is also the surest mode to prevent the commission of offenses.
