* * * * * An exception is also taken to the decision of the judge upon the trial in regard to the requests to charge made by the counsel for the defendant. At the time when the requests were presented, the jury had been charged, risen from their seats, and were about to retire in charge of an officer to deliberate upon the verdict, and the judge declined to make any further charge, and directed the jury to retire.
The orderly proceedings of a court upon a trial rest very much in the discretion of the presiding judge, and unless it appears that such discretion has been abused, it is not within the province of an appellate tribunal to interfere with its exercise. The usual course upon a trial is to hand up the requests to the judge before the charge is made, and at most, prior to the time when the jury are ready to retire in charge of an officer. A proper degree of vigilance would certainly require that the right to present requests should be exercised before the latter contingency, and a delay beyond this ordinarily would leave it for the judge to say whether he would keep or call the jury back and pass upon the requests. It should not be overlooked, that it does not appear that any portion of the charge as made was excepted to, nor what additional charge was desired, or that it would affect the disposition of the case in any manner. The counsel stated that he desired the judge to make "some charge to the jury," and to charge in some respects without advising what he desired, or showing that it was material. Nor did he state what he did desire in this respect, as he should have done under the circumstances presented. We are not prepared to say that any injustice has been done, or that there was any such abuse of discretion as would authorize an interference with the decision of the judge by a reversal of the judgment.
RAPALLO, ANDREWS, EARL and FINCH, JJ., concur with DANFOTH, J. FOLGER, Ch. J. concurs with MILLER, J., dissenting.
Judgment reversed. *Page 484