Davis v. State

Robinson, J.,

delivered the opinion of the Court.

On the 5th of April, 1872, Abraham L. Lynn, was found dead in the sink or bin of Ms mill. Six wounds were discovered on his head, one of which the examining physician pronounced mortal The appellant, an employe of the deceased, was arrested, tried and convicted of the murder.

At the trial, certain exceptions were taken, under the provisions of the Act of 1872, to the rulings of the Court. These exceptions were heard in December last, and the five Judges before whom they were argued, were of opinion that no error had been committed by the Court below, and that the said several rulings ought to be affirmed. By the request of one of the Judges who concurred in that opinion, these exceptions have been re-argued, and the case has received that patient and careful consideration which its importance and gravity demanded.

We propose now to consider the exceptions thus relied on, in the order in which they are presented by the record.

First. Doctor Manakee, the examining physician, was asked to “ state to the jury what kind of an instrument could, in your opinion, have inflicted the wounds found on the head of the deceased? ”

It is contended, that the question involves a mere possibility and not a rational probability, as to the nature of the weapon used. We do not think however, it is liable to any such objection. The witness had examined the wounds on the head of the deceased, and the sink or bin in which the body was found; and had examined also, the iron crowbar and adze, both of which were found in or about the mill. The fair import and meaning of the question under such circumstances, was to ascertain from the witness, the nature and character of the instrument by which the wounds were, in his judgment, inflicted. *36 The answer clearly shows, the witness so understood it, for he says, the wounds might have been inflicted 'by a crowbar or an adze, and in support of this opinion, he further states, that assuming the blow to have been given from a certain direction, he found the crowbar fitted the depression in the skull.

The second exception arose upon the cross-examination of the same witness. No autopsy of the body was made, the examination being confined to an external examination of the wounds. The witness was asked if there was any medical or scientific term, distinguishing the examination thus made, from autopsy? To which he answered, “some books on Medical Jurisprudence called it an examination of the body.” In answer to the further question, as to what book, witness replied, “ Taybr whereupon the counsel for the prisoner, handed the hook to the witness, and asked him to turn to that part of it in which such an examination was so designated. If. the purpose was to test the medical knowledge of the witness, the mode proposed certainly was not a very satisfactory way to do so. The medical knowledge of a witness, who is competent to testify as an expert, it is but fair to presume is founded upon authorities so differing in value, and upon such various degrees of practice and experience, that it is doubtful, to say the least of it, ■whether the accuracy of his' recollection as to a technical term used by a writer, can be said to test in any manner, his general knowledge and experience. Be that however as it may, we are of opinion that the book could not be handed to the witness even for such a purpose. Courts are not presumed to be familiar with the principles, or the terms used by medical authors, and when questions arise-, necessarily involving their application, they must, he proved as facts are proved, by witnesses competent to testify in regard thereto. Medical books are not admissible in evidence, either for the purpose of sustaining or *37 contradicting the opinion of a witness. Collier vs. Simpson, 5 Carr, & P. 74; 1 Greenleaf on Ev. sec. 440.

In the third exception, having proved by Doctor Herring, that he had been a practising physician for eighteen years, and that he had heard Doctor Manakee’s description of the wounds, and had heard also the description of the sink or bin in which the body was found, the State proposed to ask the witness whether ‘5 from the nature of the wound and fracture described by Doctor Manakee as fatal, such wound and fracture could have been or were likely to have been, inflicted by the deceased accidentally falling into the sink in the condition in which it had been described by the witnesses? ”

This question is objected to in the first place, on the ground that the subject-matter of inquiry, is not of such a character as to warrant the introduction of expert testimony. It may be difficult sometimes to determine whether the matter of inquiry, is such as to permit the opinion of experts to be offered in evidence. Witnesses ordinarily are permitted to testify only in regard to facts, and upon the facts thus proven, the tribunal before whom the case is tried, is presumed capable of forming a correct judgment. In the trial of cases however, it often happens, that questions arise, touching the matter of inquiry quite out of the observation and experience of persons in general, but within the observation of others, who from previous study or pursuits, or experience in life, have frequently and habitually brought that class of questions under their. observation. And hence it is, that in such cases, persons who from study or experience, have acquired a peculiar knowledge in regard thereto, are permitted to testify, not only as to facts, but also to give their opinions based upon facts within their own knowledge or upon facts proved by other witnesses. The weight to be attached to this kind of evidence, and the grounds upon which it is founded, are matters of course *38 for the consideration of the jury, the sole purpose in thus relaxing the rules of evidence in such cases being to aid jurors in forming a correct judgment in regard to questions, which it is but reasonable to suppose that the witness from his peculiar knowledge and experience, is more competent to judge of than they themselves. Without attempting therefore, to lay down a precise rule applicable to all cases, it is enough to say, that whenever the matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it; or in other words when it so far partakes of the nature of a science or trade, as to require a previous habit or experience or study, in order to the attainment of a knowledge of it, the opinion of experts is admissible. On the other hand, if the matter of inquiry is not such as to require any peculiar habits or study, in order to qualify a person to understand it, then such evidence is not admissible. See Carter vs. Boehm, 1 Smith’s Leading Cases, 631, (marg.)

Here the body of the deceased was found in the sink or bin .of his mill, with six wounds on the head, one of which involved a fracture of the skull, and in the absence of direct proof, the question as to how and by what means they were inflicted, depended to some extent at least upon the character and appearance of the wounds themselves. The inquiry then involved not only the general appearance of the wounds and the extent of the' injury, whether they were inflicted by a sharp, or by a dull instrument, or by accidentally falling into the sink, but also some knowledge at least of the anatomy of the skull — the relative strength and weakness oi the several parts thereof — questions which could only be satisfactorily determined by the skill and experience of persons accustomed to and familiar with the examination of wounds.-

In the next place, it was contended that the record, did not contain such a description of the wounds, and of the *39 construction and condition of the sink, as to enable this Court to determine whether a proper foundation had been laid for the introduction of this kind of testimony. It does appear, however, that the body was found in the sink, with several wounds on the head, one of which involved a fracture of the skull, and that a crow-bar found in the mill fitted the depression in the skull, caused by this fracture. These facts are sufficient, in our opinion, to lay the foundation for the admissibility of the evidence of experts, who from their knowledge and ex-, perience in regard to the nature of wounds, are better qualified than ordinary persons to form an opinion, as to how and by what means the injuries thus found on the head of the deceased, were inflicted. The preliminary question to be decided by the Court, whether the subject-matter of inquiry was of such a character as to admit of the introduction of expert testimony, depended solely upon the nature of the wounds, and not upon the description of the sink, or instrument by which in the opinion of the witness they were inflicted.

The question in the fourth exception as to whether, leaving out of view the description of the wound and fracture on the back part of the head, as testified to by Dr. Manakee, that part of the skull below the occipital protuberance, would or would not be liable to be fractured by accident, was clearly irrelevant, and therefore properly rejected. In questions of skill and experience, facts, strictly speaking, collateral, may sometimes be proven, provided they tend to illustrate the opinion of witnesses touching the subject-matter in issue. See 1 Taylor on Ev., 349. But the question here, was whether the wound and fracture found on the head of the deceased, and described by the examining physician, were occasioned by accidentally falling into the sink, and the fact that some other part of the skull, as for instance the part below the occipital protuberance, might or might not be *40 fractured by accident, tended in no way to enlighten the jury in regard to the inquiry before them.

The queslions in the fifth, sixth and seventh exceptions, as to whether it would not have been proper, according to the rules stated by medical authors, and more condxxcive to certainty in respect to description and location of the wounds and fracture, that one of the examining physicians should have made notes of the examination of the woxxnds as they were examined; — or whether there are any rules prescribed by medical science for conducting an examination of the body or the skull, for the pxxrpose of ascertaining an accurate description of the wounds in respect to their character and precise location ; — or whether according to the rules of medical science, notes of the post-mortem examination, ought to have been made at the time of the examination, were clearly inadmissible. Rules prescribed by medical authors cannot be offered in evidence, and if the purpose was to show that the examination of the wounds and fractxxre was not made in a proper and skilful manner, this could only be done through the testimony of witnesses competent to testify on the subject.

The ruling in the eighth exception must be affirmed, for reasons assigned under the third exception. Doctor Billingslea had heard Doctor Manakee describe the wounds on the head and the fracture on the skull, and heard several witnesses ‘describe the construction and condition of the sink, and upon the facts thus proven, it was competent for him to say whether such wound and fracture were likely to have been occasioned by accidentally falling into the sink.

. On cross-examination of this witness, he said he had not heard the entire testimony of Doctor Manakee — that he heard his testimony from the time he was called to the stand up to about 1 o’clock P. M., but did not hear his continued cross-examination from 2 o’clock, P. M., *41 to 4 o’clock, P. M., but that he heard Doctor Manakee describe fully the nature and character of the wounds, and heard a full description by several witnesses of the construction of the sink and its condition at the time the body was found. Whereupon the prisoner, by his counsel prayed the Court to strike out the proof, offered by the State, of the opinion of this witness, and to instruct the jury that it was not to be considered by them.

In some cases, it may be proper for the Court to refuse to allow an expert to give his opinion upon facts proved by a witness, unless he has heard all the testimony of the witness, because in such cases the entire testimony may be necessary, in order to enable him to form an opinion in regard to the subject-matter of inquiry. But here, the witness had heard the examining physician describe fully the nature and character of the injuries, and liad heard several witnesses describe the construction and condition of the bin or sink, and upon these facts we think it was competent for him to say whether such injuries were likely to have been occasioned by accidentally falling into the sink, although he was not in fact, present during the whole cross-examination of the witness. If the cross-examination elicited anything new in regard to the wounds or the sink, different from what was testified to in the hearing of the witness, the prisoner could have inquired of the witness, whether such facts affected in any manner the opinion he had formed. After all, the opinion of the witness, and the grounds upon which it was formed, and the weight to be attached thereto, were matters for the consideration of the jury.

In the tenth exception the witness, after having answered the question propounded to Doctors Herring and Billingslea, in the third and eighth exceptions, said that according to Doctor Manakee’s description of the wound and fracture, he understood the fracture to be partly above and partly below the occipital protuberance; *42 the prisoner’s counsel then asked the witness “whether a fracture of that part of the skull below the occipital protuberance could probably be caused by accident, because of its being thinner or weaker than the part of the skull on the occipital protuberance, or immediately above it ?” To which, the witness answered, that “from the description of the.fracture as given by Doctor Manakee,’the fracture of the thin part of the skull of Lynn, below the occipital protuberance, could not have been caused by accident,” whereupon the prisoner by his counsel, objected to the Court, that the answer was not in reply to the question, and claimed that the prisoner was entitled to have his question answered; but the question having been repeatedly put to the witness, and the same answer given thereto, and the witness having stated that to be his only answer to the question, the Court overruled the objection and decided that the answer was proper, and that the witness should not be further pressed with the question. It is no doubt the duty of a witness to answer such questions as the counsel have the right to ask, and should he capriciously refuse, the Court will, interfere and compel him to answer. There does not seem, however, to have been any unwillingness on the part of this witness to answer the question as he understood it. The question was purely an abstract one, and the witness answered it as being connected with some of the facts in the case, that is from the description of the wound and fracture as given by Doctor Manakee, the fracture on the thin part of the skull of the deceased could not have been caused by accident, and the question being repeatedly put to the witness and the same answer given thereto, and the witness having stated he had no other answer to give, the Court, .we think, properly interfered in not permitting the question to be further pressed.

In the eleventh exception the prisoner offered to prove by the witness that Professor Tonry, had been em *43 ployed by the State as a chemical expert in this case, for the purpose of analyzing and detecting blood marks, and had been examined by the State as an expert on the previous trial of this case at Westminster, and had bad in his possession for the purposes of analysis the clothes of the prisoner, — that the supposed blood marks on the gable-end wall of the mill spoken of by witness had not been submitted to him, and are now the same on said wall as when witness first saw them, &c. The State objected to so much of the testimony of said witness as was offered to prove that Professor Tonry had been employed in ilce former trial to analyze or subject to chemical tests, certain supposed blood-stains on the clothes of the prisoner, and the Court sustained the objection. Before, however, the exception was signed, “the State admitted to the Court and to the jury,” that “Professor Tonry had been employed on the former trial of this cause at Westminster, as an expert to apply chemical tests to the said clothes, and that he had not applied any chemical tests to said spots on the wall of the mill,” &c. The State having thus admitted the facts in regard to which evidence was offered, and to which the objection had been made, and this too, before the bill of exceptions was filed, it is very clear the prisoner was not prejudiced by the ruling of the Court, and the question as to whether the ruling was right becomes wholy immaterial.

It appears by the twelfth exception that the skull of the deceased had been brought into Court,and the witness, Doctor McKee having testified that he had been a practising physician for 38 years, that he had heard the testimony of Doctor Manakee, and the description of the sink by the witnesses, and that he had examined the skull of the deceased, and the several fractures thereon, it was clearly competent for him to answer the question, “tohether from the nature and character of the fractures on that skull, as now shown you, such fractures could have been, or were *44 likely to have been produced or inflicted accidentally by falling into the sink, in the condition in which the sink had been described by the witnesses ?” ■ .

. The objection to the testimony of Doctor Dorsey was also properly overruled. He had heard the testimony of Doctor Manakee, and others, describing the wounds and the sink, and had seen and examined the skull of the deceased, and was competent to testify as an expert. The fact that prior to the trial, the Attorney General had handed to the witness a. written description of the wounds, prepared by the examining physician, together with a model of the sink, and that upon the examination then made, he had formed the same opinion, testified to by him on the trial, in no manner affected his competency as a witness. ' Whether the opinion given in evidence by the witness was a fair and impartial one, was a matter for the jury. The fact that an expert, has formed an opinion upon the subject-matter of inquiry after reflection and deliberation, and upon consultation with others of skill and experience, surely does not render him incompetent as a witness. .

Doctor Scott, the witness offered’in the fourteenth exception, had been a practising physician for many years, had given the subject little thought, had not heard all the evidence describing the wounds and the sink, but had heard occasional parts thereof,— had seen the skull of the deceased produced in Court and examined the fractures thereon, and had seen the model of the sink which had been offered in evidence, and had examined it. The State then asked the witness the same question that had been put to Doctor McKee, in the twelfth exception, to which the prisoner objected. Now if the opinion of the witness which it was proposed to give in evidence had been based upon the description of the wounds and the sink, as testi-' fied to by other witnesses, there might be some ground for contending that a proper foundation had not been laid *45 for the introduction of such evidence. But here the witness had examined the skull and the model of the sink, and upon this examination, together with such description of the construction and condition of the sink as he had heard from other witnesses, we are of opinion it was competent for him to answer the question.

The question presented by the fifteenth exception is whether an accessory before the fact, is competent to testify for the principal felon f That he was not at Common Law, can no longer be considered an open question. Not a single case has been referred to by the counsel who has argued this case with a zeal so commendable and with an ability not loss conspicuous, nor have we been able, after the most diligent examination to find one, in which such evidence has been admitted

The rule of exclusion resulted necessarily from the relation in which the parties stood to each other. “An accessory before the fact is one who not being present, yet counsels, incites and procures another to commit a felony.” 1 Chitty’s Cr. Law, 262 ; 1 Hale, 615.

The trial and conviction of the principal was therefore a condition precedent to the trial of the accessory, whereas the acquittal of the principal operated ipso facto, to discharge the accessory. To allow an accessory to testily under such circumstances, would be to permit him to testify for himself.

But, it is contended that whatever may have been the rule of the common law, an accessory is a competent ■witness for the principal under the Act of 1864, ch. 109.

Section 1st of that Act provides that, “No person offered as a witness shall hereai'ter be excluded by reason of incapacity from crime or interest 1'rom giving evidence either in person or by deposition,” ***.****

“except as hereinafter excepted.”

Section 3. “No person who, in any criminal proceeding, is charged with the commission of an indictable *46 offense or any offense punishable on summary conviction, shall he competent or compellable to give evidence for or against himself, nor shall any person be compellable to answer any question tending to criminate himself,” &c.

It is insisted that the common law ground of incapacity on the ground of interest is swept away by the first section, and that the exception in the 3d section excludes only a party on trial, called on his own behalf,, and that the accessory and .principal being in this case indicted and tried separately, the former is a competent witness for the latter.

This construction, however, is certainly not warranted by the language of the statute. The exception in the 3d section is not confined to the party on trial, but says in express terms,

“No person who, in any criminal proceeding is charged with the commission of an indictable offence,” * * “shall be competent or compellable to give evidence for or against himself.”

The question, then, as to whether the accessory in this case comes within the provisions of the 3d section, resolves itself into this, “is he charged in a criminal proceeding with the commission of an indictable offence, and if so, is the nature of the proceeding in which he was offered as a witness of such a character as he would be testifying for himself?” That the witness Hamilton Shew was charged in a criminal proceeding with the commission of an indictable offence is admitted, and it is equally clear that the nature of the proceeding in which he was offered as a witness, that is the trial of the principal, was of»such a character, that he would be testifying for himself, because the acquittal of the party on trial, in whose behalf he was offered as a witness, operated ipso facto, as an acquittal of the witness.

The fact, that they were separately indicted does not, in any manner affect the principle upon which the testi *47 mony of an accessory was excluded. If indicted jointly, they must be tried separately, the conviction of the principal being necessary to put the accessory on trial, and even in such a case, if the contention of the prisoner be correct, the accessory would be competent as a witness, because he would be testifying in a proceeding in which another party was charged with the commission of an indictable offence. An accessory was incompetent to testify for the principal at common law, not on the ground of being jointly indicted with him, for such-was not always the case, but upon the ground that to permit him to testify under such circumstances, would be to allow him to testify for himself, and it was to prevent any possibility of its being thought that the law in this respect had been altered by the first section of the Act of 1864, that the third section was introduced.

The construction contended for by the prisoner is not sanctioned by any authority. The Act of 1864, chap. 109, was taken from the British’statutes of 6 and 7 Vict., chap. 85, and 14 and 15 Vict., chap. 99 — the third section of the latter statute being identical in language with the third section of our Act. In considering these statutes, Mr. Taylor, in the 5th edition of his work on Evidence, 2 vol., sec. 1223, says,

<cIf, therefore, several persons be jointly indicted, any one of them may under section 2 (which corresponds in this respect with the 1st section of the Act of 1864) be called as a witness, either for or against his co-defendants, excepting only in those few cases where the indictment is so framed as to give him a direct interest in obtaining their discharge. Por instance, if a man were indicted for conspiracy or a riot with other defendants, or as an accessory to their guilt, * * * it would seem that he could not be a competent witness for them, or compellable to give evidence against them, because in each of these cases, * * * the acquittal of the other defendants *48 would inevitably lead to his own, while their conviction might, at least, be a material step in establishing his guilt.” According to the construction thus placed upon the British Evidence Act, a witness was incompetent under it, to testify in any case where the acquittal of the prisoner would lead to his own, or where their conviction might be a material step in establishing his guilt — a construction utterly inconsistent with the one contended for by the prisoner.

In the late case of The Queen vs. Payne and others, 1 Crown Cases Res. 349 (Law Reports) the exception provided for in the 3d section of the 14 and 15 Vict., ch. 99, was held to extend farther than even laid down by Taylor. In that case four persons were jointly indicted for entering upon the land belonging to Earl Dudley, for the purpose of taking or destroying game, and upon the trial one of the prisoners was offered as a witness for the other. The case was heard before the sixteen Judges of England, constituting the Court of Appeals in criminal cases. It was pressed in argument in that case, as it was in this, that the common law ground of incapacity on account of interest had been abolished by the 1st and 2d sections of the British Statute, and that the only witness whose testimony was excluded by the 3d section, was the prisoner called on his own behalf.

Cockburn, C. J.,

said: “We are all of opinion that the evidence rejected was properly rejected. We are all agreed that the exception in 14 and 15 Vict., ch. 99, sec. 3, was introduced to prevent any possibility of its being thought that the law, as it had existed from the earliest times, was altered by the Act. By that law it was a distinguishing characteristic of our criminal system that a prisoner on his trial could neither be examined nor cross-examined. We think it is impossible to suppose that it could have been intended to change this rule by a mere sidewind by means of this exception.” We have referred *49 to this decision for the purpose of showing that the English Judges have gone much further in extending the exceptions of the 3d section of their Statute, than is contended for here, and .that even in a case where parties were jointly indicted, one could not testify for the other, although the acquittal of the party in whose behalf he was called to testify, operated in no manner to discharge the witness.

We rest our decision upon the plain language of the statute which declares, that “No person who in any criminal proceeding, is charged with the commission of an indictable offence,” “shall be competent or compellable to give evidence for or against himself.”

In the sixteenth exception, the witness, Harrison, testified that he saw the prisoner at Union Bridge, on the 5th April, at about a quarter past three in the afternoon. On cross-examination,'the witness said he was at several places at Union Bridge, on that day, before he say the prisoner, and amongst others, .he was at the office of Joshua Sweitzer, and that Sweitzer looked at his watch and said it was then about 1 o’clock, P. M.

The State then called Joshua Sweitzer, who testified that the said Harrison was not at his office on the 5th of April, while he the witness was there; that he did not look at his watch, and say it was about 1 o’clock, as stated by Harrison; that he recollected distinctly he was absent, on the 5th of April, from his office, from eight o’clock in the morning, until seven o’clock in the evening ; that he returned to Union Bridge so late that evening, that he had not time to get his supper, before he had to go to a meeting of the building association, of which he was an officer, &c.

The prisoner then called Isaac Shriver, and proved by him, the general character of Harrison for truth and veracity ; whereupon the State offered to prove by the same witness, the general good character of Sweitzer for *50 truth and veracity, to which the prisoner objected. Mere contradiction among witnesses furnishes no ground, as a genera] rule, for admitting general evidence as to their character; though if fraud or other improper conduct be imputed to any of'them, such evidence will be received. Annesley vs. Anglesea, 17 How. St. Trials, 1348. The credit of a witness however, may be impeached by evidence assailing his character for veracity; or by proof of contradictory statements in regard to material facts; or by disproving by other tvitnesses material facts stati d by him either in his direct or cross-examination. Here the purpose of the State was to discredit the witness Harrison, by disproving material facts testified to by him, and it was competent therefore, tor the prisoner to sustain the witness by proof of his general character for veracity. Thus the credit of the two witnesses, Harrison and Sweitzer, was fairly put in issue, and it was equally competent for the State under such circumstances, to support the general character of Sweitier for veracity. To permit the credit of the two witnesses to be put in issue, and then to deny to either side, the right of sustaining its witness by proof of general character for veracity, would be to deprive the jury of evidence necessary to the determination of the issue thus submitted to them. And where such evidence has been admitted in support of the witness on the one side, it would be manifestly unjust to deny the same right to the other. The rule laid down in 2 Taylor’s Ev. sec. 1327, is not inconsistent with these views. Thei’e the author is speaking of a witness whose general character for veracity has been impeached, and says, “the party calling him may re-establish his credit, by attacking the general character of the impeaching witnesses. How far this plan of recrimination may be carried at common law, is not yet determined; though in Courts of Equity,” adds the author, “the practice is in conformity with the rule of *51 the civil law,” which permitted the discrediting witness himself to be discredited by other witnesses, but no further.

The last exception was taken to the refusal of the Court to sign the bills of exceptions, containing all the evidence given in the cause as prepared and presented by the counsel of the prisoner.

It appears, that during the trial, the prisoner’s counsel reserved several exceptions to rulings of the Court on questions of evidence, but no exceptions were formally prepared during the trial, but were prepared thereafter, and in preparing the same, the counsel for the prisoner inserted all the evidence given on the trial, according to the view of such counsel, and asked the Court to sign and seal said exceptions, stating at the time, that they deemed it important to the full presentation of the questions reserved, that all of said evidence should be incorporated in the exceptions. The Court, however, were of a different opinion, and thought it unnecessary to the full and fair presentation of the several exceptions reserved, that the record should be incumbered with all the evidence in the cause, and declined to sign the exceptions as presented by the counsel for the prisoner, and required the exceptions to he prepared in accordance with the 5th Rule prescribed by the Court of Appeals, at the same time informing the counsel on both sides, that any suggestions they might make In reference to the insertion of facts or evidence material to the exceptions would be gladly heard and considered, and the Court thereupon, in the presence of the counsel on both sides, proceeded to revise and re-model the said exceptions, so presented by the prisoner’s counsel, so as to make the same conform to the said 5th Rule, and in lieu of the exceptions prepared by the counsel for the prisoner, did sign and seal the several exceptions in the form they now appear in the record. The 5th Rule prescribed by this *52 Court, respecting appeals from Courts of law, provides “that hills of exceptions shall he so prepared, as only to present to the Court of Appeals, the rulings of the Court helow upon some matter of law, and shall contain only such statements of facts as may he necessary to explain the bearing of the rulings upon the issues and questions involved.” “And it shall be the duty of the Judges-in the Courts below, to require exceptions tobe prepared in accordance with this Rule.”

(Decided 18th April, 1873.)

We have had occasion heretofore, on a petition filed by the counsel for the prisoner, praying this Court to direct the Court below to send up all the evidence in the case, to consider the question presented by this exception ; and then again upon an application for a writ of diminution ; and then again in the argument of the case the prisoner’s counsel were permitted to argue that the record did not contain all the evidence necessary to present fully the exceptions reserved, and that the rulings below ought to be reversed on that ground, and after the most careful examination of the record we are of opinion that it contains, all the facts and evidence necessary to a full and fair presentation to this Court of the several exceptions reserved by the prisoner.

Being thus of opinion that no error was committed by the Court in any of the rulings relied on, they must be affirmed.

Rulings affirmed and cause remanded.