Murdеr in the first degree was charged in the indictment, and the defendant tried on that charge was found guilty оf murder in the second degree, and the jury failing to assess the punishment, the court fixed it at ten yeаrs in the penitentiary.
There are neither assignments of error nor brief of counsel filed on behalf of defendant, so we have carefully read the record.
For the purposes of this investigation an outline of the testimony will suffice. Near the town of Thayer, and in the public road the defendant shot’ and killed Jasper Reed. The shooting occurred on Monday morning, December 14, 1891, and was done with a shot gun, loaded with shot ranging from squirrel shot up to turkey and buck shot, and resulted in instant death. The body of the victim was filled with shot from chin to waist-band, and when shot he evidently had his left side turned towards his slayer. Maloney, a brother-in-: law of defendant, and Thomas, the only other pаrties present at the homicide, were jointly indicted with him as accessories. Thomas fled thе country. Threats of deceased against defendant and of the latter against the formеr were established, and on Saturday night about nine o’clock, and next before the Monday mоrning, defendant was seen near the - scene of the homicide looking for Reed; and again on the next day, Sunday,
It wаs also in evidence that when attempting to borrow the revolver, which it seems had been еxchanged for a watch, defendant told Wesley Jackson that he wanted to get Rufus’s pistol; thаt Reed had drugged Maloney’s wife and ruined her; but upon the witness stand defendant admitted that his story about Maloney’s wife, who was his sister, was false.
Maloney’s testimony, as well as that of the defendant, was that the reason defendant shot Reed was because the latter threw rocks at him, and thаt he shot in self-defense, and that Reed was only some ten or fifteen feet distant when shot; althоugh the manner in which the shot scattered in the body would indicate that he was much further distant. The evidence showed that the ground was soft at the scene of the homicide, as it had been raining, and that a party picking up rocks and throwing them, as it is said deceased had done, would neсessarily soil the hands of the thrower, yet the hands of the deceased were found to be smooth and wnsoiled. Thе deceased was small in stature, and no weapon was found on his person, not even a pocketknife. He weighed only about one hundred and thirty pounds; defendant about one hundrеd and eighty.
As no assignment of errors has been filed we look to the motion for a new trial in order to discover the theory on which this appeal is grounded.
I. Among the causes thus alleged in that motion is one claiming that to the jury alone belonged the fixing of the penalty for the crimе of which defendant was
II. Other grounds stated in the motion for a new trial are in regard to the improper remarks mаde in argument by the prosecuting attorney; the permission of the child, Amanda Eamsey, to testify; the criticism of the instructions given by the court; the failure to deliver a jury list to the defendant forty-eight hоurs before trial; the allowing the jury to remain in the courthouse during its deliberation, etc., etc., and may all be disposed of by saying that if errors Were com-, mitted in any of these matters no exceptions were saved at the time, and consequently cannot be noticed though set forth at length and at large in the motion for a new trial. Exceptions perform the same offiсe in civil as in •criminal cases, and are just as necessary in the one case as in the оther; without them, promptly taken and properly preserved m the motion for a new trial, nоthing except matters of record can be reviewed. State v. DeMosse,
III. And the allegations made in the mоtion for new trial, as to errors having been committed, do not prove themselves. State v. Jewell,
IV. As there аre no errors in the record proper; none preserved by exceptions oрportunely taken, and as there is ample evidence to sustain the verdict, we affirm the judgment.