The act of the defendant was either manslaughter in the first degree or excusable homicide. That the death of Haiden resulted from the defendant’s acts is not questioned. If the force used by the defendant was wrongful his act was criminal, and death caused by a criminal act without an intent to kill is manslaughter in the first degree.
There is abundant evidence upon which the verdict of guilt can rest, and the rulings of the trial judge disclose no error prejudicial to the defendant. The case appears from the record, to have been, fairly tried and fairly presented to the jury. The complaint of the appellant’s attorney that the record does not fairly present his caséis not available upon this appeal. If the case were erroneously settled by the trial judge, the appellant’s remedy was to move to *80resettle the case, and upon the denial of his motion therefor to have appealed from the order. Upon this appeal the record as presented is conclusive upon the court and the opinion of the justice who. granted the certificate of reasonable doubt can add nothing .thereto. The judgment of conviction should, therefore, be affirmed.
All concurred.
Judgment of conviction affirmed.