On Rehearing.
LAND, J..Bill of exception No. 2 is predicated on no evidence, alleged to have been adduced on the trial of the case, and the-judge certified “that there was no evidence * * * to warrant such a charge.” Hence, on the face of the record, the judge properly refused to charge the jury on an abstract proposition of law.
' The admission of counsel on both sides, filed in this court, relates solely to the ooivtention of counsel for the defendants before-the jury. Eliminating the negation of such a contention from the reasons of the trial judge, his per curiam stands as stated supra.
[2, 3] The evidence adduced on the trial was not taken down, and there was no agreed statement of facts. The bill of exception contains no statement that evidence of any kind was adduced, and the judge certifies that the requested charge was based on no evidence whatever.
In a recent case, this court held that the recitals in a bill of exception as to- the testimony offered are controlled by the statement per curiam attached to the bill. State v. Gainey, 135 La. 459, 65 South. 609; State v. Cavido, 134 La. 294, 64 South. 117. A fortiori, where a bill contains no- recital as to evidence offered, the statement per curiam is necessarily conclusive.
The district attorney protests that his admission covers only the fact of contention, and we agree with him in that construction, but we have not been 'cited to any rule oif practice which authorizes prosecuting attorneys to alter or modify statements by the court attached to bills of exceptions. In *89the case at bar, the statement of the trial judge must be taken as true.
Bill No. 6 was not urged by counsel for the accused on the former trial, but on the rehearing has been argued by them with much earnestness. The bill comes before us in a questionable shape, as the trial judge refused to sign the bill as prepared, and recast-ed it so as to read as follows:
“Be it remembered that at the close of the charge to the jury defendants objected to the -charge on the subject what proof was; the court in substance having charged,” etc.
The objection made to the charge was in the following words, by defendant’s counsel:
“Defendants through counsel object to the •charge as a whole, and object particularly to that part of the charge which commented upon ■the duties of jury as being argumentative.”
[4] The charge of the trial judge is voluminous, but he seems to have taken special pains to instruct the jury that the burden is on the state to prove every essential element of the offense, every necessary fact, and the guilt of each of the defendants, beyond a reasonable doubt.
The judge stated to the jury:
“Sou draw your conclusions as to what the law is from the whole charge, just as you do what the facts are from the whole evidence of the case.”
[5] On the subject-matter of “proof,” the judge said:
“Proof is not a mysterious something. When from the evidence the mind is fully satisfied, from the evidence, of the truth of the charge, that is proof. It is an intelligent, conscientious, satisfactory belief, from the evidence, beyond a reasonable doubt.”
The concluding sentence makes it plain that the judge, in his charge, used the term “proof” in the sense of conviction or belief beyond a reasonable doubt. We are not prepared to say that such a charge is erroneous, or was calculated to mislead the jury.
The objection to that part of the charge relating to the duties of the jury as argumentative is without merit The judge may properly inculcate upon the jurors a sense of their high responsibility to the public as well as the accused. State v. Obregon, 10 La. Ann. 799.
[6] The defendants have on this rehearing for the first time raised other objections to the charge of the court. These belated objections challenging the legal accuracy of certain isolated expressions in the general charge come too late. This court has held that objections submitted to the trial court cannot be enlarged on a rehearing in the Supreme Court. State v. Barrett, 117 La. 1094, 42 South. 513.
Bills Nos. 1 and 3 are without merit, as the special instructions requested were covered by the general charge.
Bill No. 4 recites an objection to general charge “because it did not correctly set forth the laws as applicable to the case.” Such an objection is too vague and indefinite for consideration. Marr’s La. Grim. Jur. p. 799.
[7] Bill No. S' was taken to an addendum made by the judge to a special instruction requested by counsel for the defendants, who requested the following special charge:
“Since manslaughter is committed in the heat of passion or sudden provocation, and conspiracy is a combination of two or more persons to do an unlawful act, there can be -no conspiracy in manslaughter.”
After giving the said special instruction, the judge said to the jury:
“The above special charge is true in a general sense, but I charge you that a conspiracy can be formed by two or more persons to enter into a- fight with another person or persons, and the crime of manslaughter may be committed in the execution of the conspiracy, or by previous agreement or understanding to enter into the fight.”
Counsel for defendants objected to the above modification of the special instruction ; and the judge assigned reasons for his ruling as follows:
“The facts were such that the special charge had to be refused or else the qualification complained of given. The question of conspiracy *91was an incident, the evidence offered by the state to show that all three of the defendants had expressly or tacitly entered into an agreement to meet another or other persons the next morning and fight.”
As copied, into the record some word (probably “to”) was omitted from the statement of the reasons given by the judge. The requested charge was an abstract proposition of law, which required modification in order to make it applicable to the case on trial. We agree with the trial judge that the crime of manslaughter may be committed under the facts and circumstances stated by him.
Bill No. 7 was taken to the action of the court in overruling defendants’ motion for a new trial, on the special ground that one of the jurors was taken ill during the trial, and was thereby rendered incapable of properly understanding and appreciating either the evidence or argument of counsel. The trial judge declined to sign the bill as presented by counsel for the defendants, but corrected the statements therein so as to correspond to the facts.
The per curiam shows that the juror, at the point where the closing argument for the defendants was about to begin, was taken with a chill; that by consent of counsel, the coroner administered a dose of medicine to the juror; that the court ordered the argument suspended for an hour, and the jury retired, and on their return the juror in question stated that he was able to go on, and appeared fully recovered; that argument was resumed, continued, and closed without limitation as to time; that no objection was made by defendants and no bill reserved. We see no error in the ruling of the judge.
It is therefore ordered that our former decree in this case be vacated, and it is now ordered that the verdict and sentence below be affirmed.
O’NIELL, J., dissents for the reasons assigned in the original opinion.