1. Appeal and Error — Right of Trial by Jury — Manner of Trial Judge — Record — Constitutional Law.
The Supreme Court is confined to what appears in the record, and cannot award a new trial upon the ground assigned, merely that the manner of the judge was such as to deprive the prisoner, convicted of murder, of his right to a trial by jury.
2. Appeal and Error — Verdict, Directing — Intimation — Acquiescence.
When upon intimation from the trial judge that he would charge the jury to return a verdict of murder in the second degree, if they believed the evidence beyond a reasonable doubt, counsel for the prisoner said he would not address the jury, the remark of the attorney implies that the truth of the evidence could not be contested, and the intimation will not be held as reversible error on appeal.
3. Appeal and Error — Intimation — Instructions — Variation.
In this case, before prisoner's attorney had begun his address to the jury, upon a trial for murder, he said he would not do so upon an intimation from his Honor that he would charge them to return a verdict of murder in the second degree if they believed the evidence beyond a reasonable doubt. The court subsequently charged the jury to find a verdict of murder in the second degree if they were satisfied beyond a reasonable doubt that the facts were as testified to by the State's Witnesses. The prisoner's attorney called the court's attention to the difference between the intimation and the charge as given, and was offered and refused an opportunity to address the jury:
Held, no error.
4. Appeal and Error — Remarks of Judge — Exceptions, Specific — Practice.
Exceptions to remarks of the trial judge in a colloquy with counsel, after the charge to the jury had been given, but in their presence, will not be considered on appeal when the objectionable matter relied on is not pointed out.
5. Appeal and Error — Objections and Exceptions — Incorrect Record — Practice.
This Court can only consider the exceptions properly presented in the record, and this rule will not be departed from because the appellant's attorney insists here that the case is not a correct statement of the case and that he was not given an opportunity to note his exceptions.
(479) ALLEN, J.
We cannot consider the contention that the manner of the judge was such as to deprive the defendant of his right to a trial by jury, because we are confined to the record, and nothing appears therefrom except what was said. Upon consideration of the evidence, it is certain that the defendant could not have been acquitted on the ground of self-defense, in any aspect of it, and there was only a bare possibility of reducing the offense to manslaughter.
The defendant not only provoked the difficulty by calling the deceased a thief, but after the deceased indicated that he would resent the insult, he opened his knife and repeated the charge, and after the deceased was pulled away from him, and was being held, he advanced upon him and inflicted the mortal wound with his knife.
When his Honor told counsel that he would charge the jury to return a verdict of guilty of murder in the second degree, if they believed the evidence beyond a reasonable doubt, and counsel replied that in view of his Honor's statement he would not address the jury, this could only mean that the truth of the evidence could not be contested; otherwise, he would have discussed the credibility of the witness before the jury. It does not appear, however, that any exception was taken by the defendant to this statement of the judge, and so far as the case on appeal discloses, there was no exception to the charge to the jury.
It is true that after the charge was delivered and a colloquy ensued between the judge and one of the counsel, that the judge was requested to note an exception to his remarks, but the remarks excepted to are not pointed out, and those immediately preceding were that counsel could address the jury if they desired to do so.
It also appears that there is no assignment of error in the record.
It is possible, as suggested by counsel, that they had no opportunity to note their exceptions, and that the case is not a correct narrative of the trial, but however reluctant we may be to affirm a judgment for a long term of imprisonment when such complaints are made, we cannot base our judgment on them. We find
No error.
(480)