By the Court,
Whitman J.:The appellant was indicted for murder ; tried, and convicted of manslaughter. The only error complained of is, that the Court instructed the jury as follows : “ I am satisfied under the law and the evidence that the jury would not be justified in finding a verdict for any higher grade of offense than manslaughter, and will so instruct you.” This, appellant argues, was to his prejudice; claiming that it was in fact an expression of opinion on the part of the Court that the State had made out a case of manslaughter, and an instruction to the jury to so find.
This is a forced construction of the language. The instruction is an advice to the jury upon the question of the innocence of the prisoner of the primary crime charged in the indictment, which, under the statute (Statutes 1861, 474, Sec. 376) the Court has always a right to give, and which the jury may or may not follow; and a submission of the facts and law to their consideration as to the question of his guilt of the only remaining crime within the range ‘of the indictment. It is possible that the statute referred to may be repugnant to that clause of the Constitution which provides that “judges shall not charge juries in respect to matters of fact.” However that may be, the complexion of the present case is not altered; as admitting such repugnance, the error of the instruction was against the State, and consequently not to appellant’s wrong.
*283A case may be imagined where the instruction would be wrong, as for instance : where the prosecution failed to produce any evidence tending to prove any crime within the indictment. If that is this case, it was the business of the appellant to bring the evidence to this Court for inspection. This has not been done, and therefore the only legal presumption is that the instruction was warranted by the evidence.
A review of the whole charge as contained in the transcript justifies the assertion that the appellant has no cause of complaint. The Court first says : “ Gentlemen of the jury — by the statute you are made the judges of the degree of the crime committed, if you find that any was committed at all, by the defendant.” Then follows a separate definition of murder in the first and second degree — manslaughter and excusable homicide, closing with the instruction first quoted. No ingenuity can conjure an error therefrom to appellant’s prejudice.
The judgment is affirmed.