delivered the opinion of the court.
The action of the court below in leaving the bench and retiring to the water closet in the courthouse yard is not manifested to us in any mode known to the law. It was not made the ground of any exception at any time during the progress of the cause, nor was it in any way referred to in the motion for a new trial. It was put in a special bill of exceptions, signed by the judge long after the court adjourned. It is said in the briefs that the decision in Ellerbee v. State, 75 Miss., 522, was not known until after the court adjourned, and that that accounts for the failure to note the point, in the stenographer’s notes or in any other way. It is not referred to in the general bill of exceptions at all. The point is, not whether defendant would waive this action of the court, but whether the fact that he did leave the bench. is manifested to us by any bill of exceptions provided for by law. We do not think it is, and the motion to strike this special bill of exceptions from the record is sustained.
The point made as to the second instruction for the state is not maintainable. The instruction is not open to the objection made to the instruction on the same subject in Lipscomb v. State, 75 Miss., 559. It adds the clauses “the highest degree of *141moral certainty, ’ ’ and ‘£ to the exclusion of every reasonable doubt.” And as to use of the word “killed,” it is, of course, plain that the killing here was murder and nothing else.
Affirmed.