The defendant appealed from a conviction and sentence for the crime of shooting with intent to commit murder.
The case was submitted to Division A, and the judgment rendered therein annulled the verdict and sentence, and remanded the case for a new trial. On the application of the state a rehearing was granted, and the case is now submitted to the court en banc.
It is correctly stated in the original opinion that the only question in the case is whether the judge should have charged the jury, without being requested to do so, that the defendant might be found guilty of the crime of shooting with intent to kill. In the body of the opinion it is said: *Page 739
"Inasmuch as the judge would not have given the charge if it had been requested, we cannot reasonably hold that the defendant should suffer for omitting the futile request."
In view of the judge's per curiam to bill No. 4, we do not think the facts support the court's assumption that the charge would have been refused if properly and timely requested. The judge says:
"No request was made of the court to charge that the defendant might be found guilty of shooting with intent to kill, the question was not raised until the motion for a new trial was filed. There was no error in refusing to charge that the jury might find the accused guilty of shooting with intent to kill, when there was no evidence offered to support that verdict, but, even if there had been an error, defendant cannot avail himself of it for the first time on a motion for a new trial. He should have requested the charge, and then, had the court failed to give it, taken a bill of particulars."
It is the settled law of this state that the judge must be given an opportunity to correct his charge at the time of its delivery. State v. Bush et al., 117 La, 463, 41 So. 793; State v. McCrocklin, 130 La. 108, 57 So. 645; State v. Miller,125 La. 260, 51 So. 189; State v. Salter, 48 La. Ann. 197, 19 So. 265; State v. Laborde, 48 La. Ann. 1491, 21 So. 87; State v. Dudoussat, 47 La. Ann. 977, 17 So. 685; State v. Thomas, 34 La. Ann. 1084.
In this case no request was made for a special instruction, and no objection was noted to the whole or to any part of the charge given. In criminal cases this court can only review errors which are patent on the face of the record, or such as are brought before it through bills of exception properly and timely taken.
The jurisprudence of the state is that, except where the accused is charged with murder, it is not the duty of the judge to enumerate the lesser grades of the same generic class of crimes or to instruct the jury with reference to any lesser grade thereof, *Page 740 unless the evidence offered in the case warrants such a charge. State v. Kemp, 120 La. 378, 45 So. 283; State v. O'Connor,119 La. 464, 44 So. 265; State v. Johnson, 116 La. 30, 40 So. 521; State v. Parks, 115 La. 765, 40 So. 39; State v. Fruge,106 La. 694, 31 So. 323; State v. Pastor, 111 La. 717, 35 So. 839; State v. Matthews, 111 La. 966, 36 So. 48.
In a prosecution for murder the judge must, regardless of the proof or the want of proof, charge the jury that the defendant may be convicted of manslaughter. Section 785 of the Revised Statutes makes it the duty of the judge to do so, and this court has so often and so consistently held the judge to the performance of that duty that it is needless to cite those authorities.
In State v. Birbiglia, 149 La. 4, 88 So. 533, the court suggests a reason for this rule, and in the original opinion herein the court found that reason as appropriate in a prosecution for shooting with intent to commit murder as in a prosecution for murder. That view is inconsistent with the authorities cited supra, and with the two cases reviewed in the original opinion, viz., State v. Marqueze, 45 La. Ann. 42, 12 So. 128; and State v. Wright, 104 La. 44, 28 So. 909. In both of these cases it is held that in prosecutions for shooting with intent to commit murder the defendant waives his right to complain, if he does not, before a verdict is rendered, request the judge to charge the jury that a verdict of shooting with intent to kill would be a responsive verdict.
On reconsidering this case we are of the opinion that the accused had a fair trial and that no reversible error is found in the record. For these reasons the judgment of this court heretofore rendered herein is avoided, and it is now ordered, adjudged, and decreed that the verdict and sentence appealed from are affirmed. Appellant is reserved the right to apply for a rehearing. *Page 741