The opinion of the co.urt was delivered by
Mr. Chief Justice McIver.The appellant was indicted for' and convicted of the murder of her husband, the allegation on the part of the State being that the death was caused by poison administered in the form of overdoses of calomel. From the judgment rendered on the verdict, the defendant appeals upon the several grounds set out in the record, in all of which, except the first and fourth, the error imputed to the Circuit Judge is in violating the constitutional provision forbidding a judge from charging a jury upon the facts.
1 The error alleged in the first ground' of appeal is in asking Dr. Lyle,'a witness for the defence while upon the stand, the following question : “Have you ever seen the body of one who died from calomel, except this one?” whereby it is claimed that the judge conveyed to the jury the impression that, in his opinion, the deceased had died from the effects of overdoses of. calomel. This witness had never seen the deceased while alive, but having assisted Dr. Murphy in making the post mortem examination, was called to rebut the theory upon which the case for the State rested, by suggesting that from the appearances presented by the examination of the stomach and bowels of the deceased, he might have died from natural causes — a disease known as consumption of the bowels. It was therefore quite natural that questions should be put to him calculated to test the extent of his experience; .and what more natural than to ask whether he had ever seen the body of any one who had died from the cause to which the death of the deceased had been attributed by the other physician. The point of. the objection, however, seems to rest upon the last three words of the question — “except *25this one” — which, it is claimed, were sufficient to indicate that the judge who propounded the question had reached the conclusion that the deceased had died from overdoses of calomel. It does not seem to us that this necessarily followed, for a person who had reached no conclusion of his own upon the subject might very well have framed the question in the way in which it was propounded, having reference to what had previously been testified to by the other physician, and not to any opinion of his own. But even if the form of the question could be regarded as sufficient to indicate the judge’s own opinion as to the cause of the death, that would not constitute such an error of law as would warrant this court in reversing the judgment. State v. Atkinson, 33 S. C., 100.
2 The fourth ground of appeal imputes error to the Circuit Judge in stating in the charge to the jury the rules of law in reference to circumstantial evidence, “in that he omitted to state that the circumstances must be consistent with each other, and that the circumstances must to a moral certainty actually exclude every hypothesis but the one proposed to be proved.” It does not appear that the judge was requested to charge any particular propositions of law in reference to circumstantial evidence, and therefore an omission to state any or all the rules in regard to circumstantial evidence cannot be regarded as reversible error. We must therefore confine our attention to the single particular in which error is imputed. It will be observed that the judge did not undertake to state to the jury all of the rules upon the subject, but after defining the nature of circumstantial evidence, he used this language: “The principal rule by which you are to be guided in hearing circumstantial evidence is, 1st, that the circumstances must be proved to your entire satisfaction; and 2nd, when the circumstances are established, that they must point conclusively to the person charged, and must be inconsistent with any other reasonable hypothesis.” We see no real practical difference between these words and those which by the exception it is claimed he ought to have used. It is quite certain that the language actually used by the Circuit Judge conveys no erroneous legal proposition, and if it was supposed that the rules of law were incompletely or insufficiently stated, there should *26have been a request to charge such omitted rule. So that in no view of the matter can this exception be sustained.
3 4 The remaining exceptions in different forms raise the same question, viz., whether the Circuit Judge in his charge to the jury has violated section 26, of art. IV., of the Constitution. Inasmuch as we think the judge’s charge is quite sufficient for its own vindication, we trust that it, together with the exceptions, will be set out in full in the report of the case. We, however, propose to notice very briefly the several exceptions. The second is manifestly too general in its character to require further notice. In the third, the point in which the constitutional provision is claimed to have been violated is in the comments of the judge as to the alleged agency — poison—by which death was caused, which of itself shows deliberation; but there is not a word of comment as to the testimony. On the contrary, the language relied on as objectionable begins hypothetically “if it be a fact,” &c., and the jury having been instructed throughout the charge that every question of fact rvas for them exclusively, we see nothing whatever objectionable in the language upon which this ground is based.
As to the fifth ground, the Circuit Judge did no more than to call the attention of the jury to the common sense principle that in an investigation of any charge of crime it is but natural to inquire whether the person charged had any motive to commit the crime of Avhich he is accused, and to state to the jury Avhat circumstances were relied upon by the prosecuting officer to establish a motive. Hoav this can be regarded as any violation of the constitutional provision, Ave are utterly at a loss to conceive. There Avas not a Aford said Avhich would even tend to indicate Avhat was the judge’s opinion as to whether a motive was established or not. On the contrary, he complied rigidly with the constitutional provision Avhich permits him “to state the testimony” by simply narrating the circumstances relied upon by the solicitor to establish a motive. What has just been said applies Avith equal force to the sixth ground of appeal, though the special objection seems to be that the judge used the term “facts,” and thereby indicated his belief that the testimony relied upon to show a motive Avas true. We do not think that this is a just *27inference, as nothing is more common than to instruct the jury to inquire whether the facts as stated by the witnesses are true.
5 The seventh ground is also based upon the use of certain words — “called on to find” — which it is claimed not only indicated the judge’s opinion as to the facts, but also contained a mandate for the jury to find the defendant guilty. This, as it seems to us, is quite a strained and unnatural construction of the words, “called on to find,” and one which we have no idea was placed upon them by the jury. There is no rule better settled than this, that in construing a judge’s charge, it must be considered as a. whole, and not in detached portions, for it is in fact nothing but a rule of common sense, which the average juror is quite competent to apply. Now, the words specially objected to in this ground of appeal are found in that portion of the charge where the Circuit Judge was stating to the jury what were the circumstances relied upon by the prosecuting officer, and the conclusions which he thought ought to be drawn from them, and at the conclusion of’such statement, he said:“Now, from all this testimony you are called on to find,” &c.', manifestly meaning that the jury were called on, not by the judge, but by the prosecuting officer, to find the defendant guilty. And when it is seen that throughout this statement were interspersed instructions that it was for the jury to determine whether the testimony relied upon by the solicitor was true, we are unable to conceive how the jury could have supposed even, that the judge had formed any opinion as to the truth of the facts and circumstances relied upon to show the defendant’s guilt, much less that he indicated in any way his opinion to the jury.
6 The eighth ground of appeal imputes error to the Circuit Judge in closing his statement of the testimony for the defence in these wordé: “That is’the substance of the testimony for the defence,” whereby it is claimed that he indicated to the jury that there was no other testimony in favor of the defence than that contained in his statement, whereas in fact there was other important testimony which was wholly omitted. Even if the charge upon which this ground of appeal is based were well founded, it would constitute no error of law of which this court could take notice — State v. Jones, 21 S. C., 596— *28where it was held that if the Circuit Judge, in his charge to the jury, misstates the testimony, the proper time and place to correct such misstatements are at the trial, or at most by a motion for a new trial in the Circuit Court. For exceptions alleging misstatements of the testimony present no errors of law; and, upon the same principle, an exception alleging an incomplete statement of the testimony presents no question of law. But we do not think that the charge is well founded. An examination of the charge will show clearly that the Circuit Judge did not undertake to state the whole of the testimony either upon the part of the State or on the part of the defence, but only the substance of the testimony.
7 The ninth ground of appeal imputes error to the Circuit Judge in saying to the jury that a party may be convicted upon circumstantial evidence, and that it is often necessary to resort to that species of evidence. If this be error, then it is one which pervades all of the text books upon the subject of evidence, as well as many decided cases. Surely it cannot be said that a Circuit Judge in laying down a proposition universally accepted as correct both by lawyers and laymen, can be said to have indicated any opinion whatever as to the force and effect of this species of evidence when resorted to in a given case.
3 The tenth and eleventh grounds of appeal are too general in their character to require any further notice.
The judgment of this court is, that the judgment of the Circuit Court be affirmed, and that the case be remanded to that court for the purpose of having a new day assigned for the execution of the sentence heretofore imposed.