(dissenting).
I do not reach the question of whether the trial judge’s ruling on the special charges constituted a comment upon the evidence.
The complaint that the trial judge commented upon the evidence was made for the first time in a motion for a new trial.
Subject to exceptions not pertinent here, Article 841 of the Louisiana Code of Criminal Procedure provides:
“An irregularity or error in the proceedings cannot be availed of after verdict unless it is objected to at the time of its occurrence and a bill of exceptions is reserved to the adverse ruling of the court on such objection. Failure to reserve a bill of exceptions at the time of an adverse ruling of the court operates as a waiver of the objection and as an acquiescence in the irregularity or. ruling.”
When the defendant offered no objection and made no motion respecting the alleged comment on the evidence at the time of its utterance, the matter was waived. A defendant cannot bide his time to see if the verdict will be favorable and, if not, then pounce upon a language-error of the trial judge in denying a special charge. See State v. Reed, 252 La. 128, 209 So.2d 730 (1968); State v. Fink, 255 La. 385, 231 So.2d 360 (1970).
For the reasons assigned, I respectfully dissent.