dissenting: The prisoner was indicted and convicted of murder in the first degree of killing a white man. It is not controverted that there was ample evidence before the jury, if believed, to justify the verdict. The exception on which a new trial is asked is based upon the following facts: There was evidence that six months before the homicide the prisoner, in July or August of last year, when the deceased passed by him, said to a bystander and looking at the deceased, “I will get the God-damned son of a bitch sooner or later.” There was evidence offered by the State that in the summer of 1920 there had been a previous difficulty between the father of the prisoner and the 'deceased, and that the prisoner had made a similar threat two years and a half before the trial, but the court had excluded it.
In the charge to the jury the court stated the contentions of the State, and among the contentions of the prisoner he said: “It is con*37tended that any trouble tbat may have occurred between Brock (tbe deceased) and Love’s father bad been thirty months before, and that George Love had nothing to do with it.” Neither the prisoner nor the State made any exception to this recital at the time nor until after verdict. '
It has been stated, too often to be now departed from, that any error in stating the contentions of the parties must be excepted to at the time, and if this is not done an exception cannot be taken after verdict. The following are a few among the very many cases that “an objection to the court’s statement of the contentions of the parties cannot be first made after verdict”: S. v. Tyson, 133 N. C., 692; S. v. Davis, 134 N. C., 633; Phifer v. Comrs., 157 N. C., 150. “If a judge states a certain condition of affairs as being contended for by a party, when there is no evidence to support the contention, it is the duty of counsel to call the court’s attention thereto.” Jeffress v. R. R., 158 N. C., 215.
This ruling that a failure to call the attention of the court, at the time, to any alleged error in stating the contention of the parties waives the objection, has been so often held, and it is so entirely without an exception, that it is unnecessary to cite the numerous and unbroken precedents which sustain the self-evident requirement in the due and just administration of the law. The courts cannot be governed by sentimental considerations urged by counsel who have lost out before a jury upon evidence and a charge not excepted to.
This is a plain, practical, well-settled rule of action.
The party who thinks himself prejudiced by any inadvertence or error in stating the contentions should make the exception at the time, and if he does not do so, it must be taken that he did not think himself prejudiced thereby, and if he does not do so at the time, so the judge can correct it, he will not be allowed to make an exception after verdict. To permit this would be eminently unfair to the State. The opportunity should be given the judge to correct an inadvertence (for such it must be) at the time, and if not, it must be taken that all exception was waived. This has been the uniform ruling of the Court, made uniformly and without any exception whatever, and should not now be departed from and for the first time in favor of this defendant. Upon the review of the whole evidence in this case, it would seem very clear that it could not possibly have had any effect upon the jury. If it had, notwithstanding that the failure to except had waived objection to the inadvertence, it is very certain that on an appeal to the presiding judge, who knew all the facts and circumstances much better than can be presented here, in the interest of justice, he would have set aside the verdict.
*38Upon tbe face of tbis record it seems clear that the jury had the whole case fairly and fully presented to them by his Honor’s charge and have found their verdict upon ample evidence.
It is to the interest of justice that new trials should not be granted for immaterial matters or inadvertences which it is not shown could have had any effect upon the result.
The American Bar Association, headed by the Chief Justice of the United States, has issued á statement asking for more efficiency in the administration of justice, and nothing can more militate against this than the granting of new trials upon any inadvertence, or matters like this, which the counsel at the time did not deem was of sufficient importance to ask the court to correct, and which it must be taken that he would have promptly done if asked.
As an evidence of the insecurity of life in this country, caused by the granting of new trials or acquittals upon technical or merely sentimental reasons, it is pointed out that last year in the United States there were 15,000 homicides, and in this State in 1921 there were 246 according to the Bureau of Yital Statistics, and in 1922 there were 253, while in Great Britain, with 40 millions of people, there were less than 40. Indeed in 1922, as stated in the official report, of- which we take judicial notice, it is returned that “in this State there were 298 deaths from typhoid fever and 253 homicides, and that while disease had decreased crimes had increased.”
¥e know that as a matter of fact that so great is the dissatisfaction with the numerous new trials and miscarriages of justice, due to acquittals or new trials based often upon mere technicalities, crime has so much increased in this country that secret and unlawful organizations pervade the country and- State to a large extent, and it is not inappropriate, but timely, that the courts should take notice of the warning of the American Bar Association and the Chief Justice that there is an “alarming and steadily growing disrespect and, indeed, hostility to the courts.” These secret organizations for the protection of society can have as their cause only the apprehension of the public that the great and increasing volume of crime is due to the inefficiency of the courts, caused largely, if not altogether, by yielding to the impor-tunities of counsel claiming every technicality as a defense, when, upon the law and the facts, the jury have found, beyond a reasonable doubt, that the defendant is guilty.
In this case the facts were fully developed, the prisoner was ably defended, and the inadvertence in stating a contention, which would have been corrected if called to the attention of the judge, should not be allowed, in my humble judgment, to give this prisoner a new trial where, upon the evidence, under a charge unexcepted to, the jury have *39found that beyond a reasonable doubt tbe prisoner was guilty of felonious, malicious and premeditated murder.
Crime should be repressed by tbe orderly process of tbe courts and by tbe certainty of tbe infliction of punishment when tbe crime has been duly ascertained by tbe verdict of tbe jury, but society must be protected, and if tbe courts fail to do so we may expect tbe continuance of tbe lawless process by which tbe public may, and will, deem it necessary to protect themselves when tbe courts do not do so.
Homilies upon tbe evil effects of tbe repression of crime by secret and unlawful bodies of men will have no effect. Tbe only remedy is tbe efficient and common-sense enforcement of tbe law by tbe courts, which are provided and supported at tbe expense of tbe public for tbe sole purpose that by tbe legal repression of crime, life and property may be made safe.
.Among tbe many opinions which, without a single exception cite, approve and repeat tbe proposition that if tbe court recites tbe evidence or tbe contentions of tbe parties incorrectly, any objection must be made at tbe time so as to give tbe judge opportunity to correct it, and that otherwise tbe objection is waived, tbe following are tbe latest cases: S. v. Cox, 153 N. C., 638; S. v. Blackwell, 162 N. C., 684; S. v. Fogleman, 164 N. C., 461; S. v. Cameron, 166 N. C., 384; Ferebee v. R. R., 167 N. C., 296; Barefoot v. Lee, 168 N. C., 90; Lea v. Ins. Co., ibid., 478; Ball v. McCormack, 172 N. C., 682; McMillan v. R. R. ibid., 853; S. v. Merrick, ibid., 872; s. v. Johnson, ibid., 925; S. v. Burton, ibid., 942; S. v. Martin, 173 N. C., 810; Muse v. Motor Co., 175 N. C., 471; Mfg. Co. v. Bldg. Co., 177 N. C., 106; Bradley v. Mfg. Co., ibid., 155; Futch v. R. R., 178 N. C., 284; Hale v. Rocky Mount Mills, 186 N. C., 51; and there are many others to tbe same effect and not one to tbe contrary.
These are all uniform and unequivocal, and there is no reason why a special exemption from so absolutely settled a rule should be made in favor of this defendant. It is true that be is a colored man, indicted and found guilty of tbe murder of a white man, but there is not the slightest indication in tbe record or otherwise that be has not bad a full, a fair and an impartial trial, and there is no reason why tbe special privilege of being exempted from so well-settled a principle and, indeed, so necessary a one in tbe due administration of tbe law, should be granted him. There is no indication that be has been prejudiced thereby. Tbe presumption' of law is in favor of tbe correctness of tbe ruling and the impartiality of tbe presiding judge and of tbe jury-