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. *Page 389
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)