MONTGOMERY and DOUGLAS, JJ., dissenting. The defendant was indicted for burning a tobacco barn and pack-house, and having been convicted, appealed to this Court. The only exception relates to certain remarks of the solicitor in his address to the jury. It was in evidence that the defendant is a colored man and had been a slave of a Mr. Tyson. He was raised on the plantation *529 where the crime was alleged to have been committed and made his home there a greater part of his life. The prosecutor had purchased the plantation and the defendant had been his tenant. The barn which was burned was within forty or fifty yards of the Tyson dwelling, where the prosecutor lived. It was further in evidence that the defendant received a pension as a Union soldier. It is stated in the case that "Counsel for the defendant in addressing the jury spoke at some length and with considerable feeling of the attachment of the defendant to his old master and the members of his family, and pictured with eloquence the sacredness of the surroundings, and argued that the defendant could not and would not in sight of the old dwelling set fire to the barn." The solicitor in reply said: "It did not appear that he (the defendant) was strongly attached to his old master and his family, as it appeared that when the test came he had a gun in his hand ready to shoot down his young master, and is now drawing a pension for it."
No exception was taken to the remarks of the solicitor at the time, nor were they called to the attention of the judge until after verdict.
We think that this exception came too late, even if the language of the solicitor in argument was, under the facts and circumstances of the case, such an abuse of his privilege as to entitle the defendant to a new trial, if exception had been taken at the proper time. The (694) evidence upon which the remarks of the defendant's counsel and the solicitor were based was altogether irrelevant to the issue joined between the State and the defendant, and if it had been objected to in apt time it should, and no doubt would, have been excluded by the court; but it seems that the defendant's counsel first introduced irrelevant testimony for the purpose of using it as a foundation of his appeal to the jury that the defendant's supposed attachment to his former master and to the old homestead would deter him from committing the crime with which he was charged, and without any objection from the defendant the solicitor was permitted to prove that the defendant was drawing a pension as a Union soldier, and to argue from that fact that he had no such attachment, as he had taken up arms against his master and was drawing a pension for it. It appears, therefore, that the discussion of this evidence proceeded with the consent or acquiescence of the defendant, and that what was said by the solicitor was somewhat provoked if not justified by the previous remarks of the defendant's counsel. The remarks on both sides were of such a character that the presiding judge could, with perfect propriety and in the exercise of his discretion, have interfered and stopped the discussion; but the defendant is not in a position to complain of what was done or of what the judge failed to do, as he did not except when he had the right and opportunity to do so, *530 and he did not request the judge in his charge to call the matter to the attention of the jury, so that any injurious impression made upon them by the remarks of the solicitor might be removed.
This Court has many times decided that exception to the (695) remarks of counsel during the argument must be taken before verdict, and we are not disposed to reverse or even to modify this just and salutary rule of practice.
In S. v. Suggs,
In S. v. Brown,
In S. v. Powell,
In S. v. Lewis,
In Knight v. Houghtaling,
These extracts from the cases have been made for the purpose of showing that by a long and unbroken line of judicial decisions the rule requiring exception to improper remarks of counsel to be made in apt time, and at least before verdict, has been well established. See, also, S. v.Underwood,
The defendant's counsel in this Court contended, though, that when the abuse of the solicitor's privilege in debate is gross and manifestly calculated to prejudice the defendant, the judge should interfere and stop counsel and so caution the jury as to prevent any injurious consequences to the defendant, and his failure to do so even (697) without objection by the defendant was error; and for this position he relied on S. v. Smith,
The question now under consideration was before this Court in Perry v.R. R.,
We conclude, therefore, that the conduct of a trial in the court below, including the argument of counsel, must be left largely to the control and direction of the presiding judge, who, to be sure, should be careful to see that nothing is said or done which would be calculated unduly to prejudice any party in the prosecution or defense of his case, and when counsel grossly abuse their privilege at any time in the course of the trial the presiding judge should interfere at once, when objection is made at the time, and correct the abuse. If no objection is made, while it is still proper for the judge to interfere in order to preserve the due and orderly administration of justice and to prevent prejudice and to secure a fair and impartial trial of the facts, it is not his duty to do so in the sense that his failure to act at the time or to caution the jury in his charge will entitle the party who alleges that he has been injured to a new trial. Before that result can follow the judge's inaction, objection must be entered at least before verdict. Knight v. (699) Houghtaling, supra. A party will not be permitted to treat with *533 indifference anything said or done during the trial that may injuriously affect his interests, thus taking the chance of a favorable verdict, and afterwards, when he has lost, assert for the first time that he has been prejudiced by what occurred. His silence will be taken as a tacit admission that at the time he thought he was suffering no harm, but was perhaps gaining an advantage, and consequently it will be regarded as a waiver of his right afterwards to object. Having been silent when he should have spoken, we will not permit him to speak when by every consideration of fairness he should be silent. We will not give him two chances. The law helps those who are vigilant — not those who sleep upon their rights. He who would save his right must be prompt in asserting them.
What was said by this Court in Burton v. R. R.,
It is suggested that the evidence was not sufficient to justify a conviction of the defendant. There is no point made in the record as to whether there was any evidence or any sufficient in law, upon which to base the verdict. Whether there was or not is a question not now before us. The record does not contain any of the evidence, because no question was made in regard to it, and the fact that there is no statement of the evidence in the record is tantamount to an admission that there was evidence sufficient to sustain the verdict. In this Court we are confined to the record and have no right to receive information of any facts that do not appear in it, much less to consider or act upon any such information. "The record importeth verity," and we are enjoined by the law to look to the record alone and upon it to found our judgments. Any other rule would render insecure the important rights upon which we have to pass. *534
It is needless to discuss the question whether, if seasonable objection had been made by the defendant in this case, the remarks of the solicitor, in view of the particular circumstances under which they were made, were of such a character as to entitle the defendant to another trial. S. v. Bryan,
The defendant's objection to the formation of the grand jury was, we think, properly abandoned in this Court. We find no error in the rulings of the court or in the record, and it will be so certified.
No error.