Commonwealth v. Zappe , 32 W.N.C. 130 ( 1893 )

Opinion by

Mr. Chief J ustice Paxson,

The appellants were convicted in the court below of murder of the first degree. The first five specifications of error either do not conform to the rules of court or refer to matters not assignable as error. The sixtli and seventh specifications allege error in certain portions of the charge of the learned judge. The portions of the charge thus assigned as error are isolated sentences wrenched from their position and connection in the general charge. When read in their proper connection they are free from error.

The eighth, ninth and tenth specifications allege that the learned judge erred, not in what he did say to the jury, but in what he did not say. We think the charge was sufficiently full and accurate. If the judge fails to charge upon some point which the prisoner’s counsel regard as essential to the defence, it is only fair to the trial judge that his attention should be called to it before the jury leave the bar, in order that he may correct any omission, if any has been made. It would require a very strong case to induce us to reverse a judgment after a trial upon the merits for any such reason as is set forth in these specifications. We have not the case before us of a wholly inadequate charge.

The eleventh specification alleges that the judgment should be reversed, because of the manner in which the district attorney argued it to the jury. This was a matter for the consideration of the court below upon the motion for a new trial. It is not reviewable here for the plain reason that the manner of the district attorney does not come up with the record.

The judgment is affirmed, and it is now ordered that the record be remitted to the court of oyer and terminer for the purpose of execution.