(After stating the foregoing facts.)
1. In the motion for a new trial it is complained that at the conclusion of the defendant’s statement the court refused to permit his counsel the privilege of calling his attention to a material omission from his statement, to wit: “I told Mr. Hargett that I killed Cherry; but I was so scared, as I thought the negroes were going to mob me, that I didn’t know what I was doing or what I said.” Counsel insisted that “it was discretionary with the court to permit defendant’s counsel to call his attention to a material omission from his statement. The court refused to exercise this discretion, saying that the court had no discretion in the matter, that to do so would be reversible error, that the law was mandatory upon him, and that he (the court) had no such discretion.” To this ruling the movant excepted. The court certified this ground of the motion with the following explanatory note: “The request of counsel for accused, stated in the 4th ground, was a whispered conversation with the court during the trial, not heard by State’s counsel; and this is. here stated on motion of latter.” Hnder the circumstances this court will not reverse the judgment for the failure to permit counsel to make the suggestion in reference to the statement of the accused, as requested. True, it was in the discretion of the court, had a request or a motion been duly made, to permit the counsel to make a suggestion to the defendant in reference to his statement, so as to call his attention to any material omission therefrom. But, in order to invoke a ruling from the court, counsel should have made a request or motion in open court and in the hearing of the State’s counsel, so that the latter might have opposed the motion had he desired to do so, or have consented to the request if he thought that was proper. But a. request made of a court in a whispered conversation, though the judge was at that time on the bench, can not be treated as a motion made in open court; and the reply that the court may have made to a request made in such whispered conversation can not be made the subject of exception in a motion for a new trial. The precise question which we have before us, that is, whether or not this court will pass upon exceptions taken to a statement on an
2. In the absence of a request to charge on the subject of confessions and admissions, failure of the court to instruct the jury on those subjects is not ground for the grant of a new trial.
3. The verdict is authorized by the evidence; and the judge of the court below having refused a new trial, his discretion will not be interfered with here.
Judgment affirmed.