
    No. 262.
    State of Louisiana v. Martin Tally.
    Tlio jury, in a verdict of manslaughter, have nothing to do with fixing the punishment. [Evidence which goes only to the mitigation of punishment, and is conceded not to constitute any legal excuse, is therefore irrelevant and not admissible.
    The jury are the judges of the law aud the facts, hut when sitting on the trial of a criminal cause, they should talc© the law ns given them by the judge. The jury may, however* disregard the construction of the law as given by the judge.
    APPEAL from the Tenth Judicial District Court, parish of Caddo,
    
      I/si’isee, J. James 8. Ashton, district, attorney, lor the State.
    
      James W. Ikencan, J. 0. Moncwre and A. IF. O. Hieles, tor defendant and appellant.
   Howe, J.

The defendant was indicted for murder, found guilty of manslaughter and sentenced accordingly, and has appealed.

We will examine the points in the order in which they are presented in the appellant’s biief. He contends:

First — That the judge a quo erred in not permitting tlie defendant to prove how the killing oí F. W. Tally, the lather ot the de.endant, by O’Neal, whom the defendant killed, occurred, the State having admitted that O’Neal had killed said F. W. Tally.

The judge excluded the testimony on the ground that the killing of defendant’s father by O’Neal in August, 1870, could lurn sh no legal excuse tor the killing of O’Neal by defendant in April, 1871. We do-not thiuk the judge erred; and, indeed, we do uot understand the defendant as ela ming here that tlie iacts offered to bo shown, if shownj could do anything more than go to the alleviation of punishment. But the jury in this case have iound a verdict of manslaughter, and for the practical purposes of this case we must look at the offer of proof from the point ot view of this verdict-. Now, in manslaughter the jury-have nothing to do w th fixing the time of imprisonment, and therefore any evidence which goes to a mitigation of punishment only, and. is conceded to constitute no legal excuse, is irrelevant before the jury.

Second — That die court erred “in excluding the dying declarations of F. W. Tally, the lather of defendant, offered for the purpose of showing the influences under which the defendant acted in killing-O’Neal, and as producing in his mmd the belief that his father was. murdered by O’Neal.”

The judge excluded the testimony for the reason that it had adready been shown that F. W. Tally was killed by O’Neal on tlie sixteenth August, 1870, and the killing in this case took place on the eighth day of April, 1871, and the suggestions of the dying man to hi,s son could! not, under such circumstances, constitute any excuse after so long a delay, if at all.

The answer we have given to the first point is an answer to this, and ' we do not think the judge erred.

Third — That the judge erred, while discussing with counsel the admissibility of the testimony thus offered, “in characterizing the killing of O’Neal as a murder.” The judge in the bill of exceptions says in reference to this point: “The court referred necessarily to the specific facts by way of stating its reasons in ruling a question ot evidence raised by defendant, and they were necessary.” We take this statement of the judge as true, and with his explanation we tail to perceive any error. The conclusion from the whole hill is, that the judge declared that the fact that O’Neal was a murderer would not justify his murder, a proposition of law, tho enunciation of which could afford the appellant no ground of complaint.

Fourth — That the judge erred in his charge to the jury in reference to their being judges of both law and facts. We may here remark that we can not notice the affidavits which appear annexed to the record relating to ihe disputed question as to what the judge charged on this point. Nor can we pass upon the hill of exceptions found at page five of the record, which refers to a paper which appears to be lost, and without which the bill is incomprehensible. Nor can we notice the reqnest to charge on this subject at page nineteen, which Avas refused, as the appellant took no exception to such refusal. We find, howeve'r, at page twenty, that the judge charged the jury “that they Avere judges of the law and fact, but they are expected to receive the law as given them by the judge.”

We see no error in the charge aboAre quoted. The jury are judges of the law and fact, hut the judge is required to give them a knowledge of the law applicable to the caso. R. S. § 991. It would be a vain thing for him to give them this knowledge if they Avere.hot to receive it. On the contrary, they are expected, and ought, as a rule, to receive it, though they are under no compulsion to do so. State v. Ballerio, 11 An. 81; State v. Scott, 11 An. 429; State v. Scott, 12 An. 386; 17 An. 71.

Fifth — “ That the court erred in permitting the jury, in their retirement to consider of their verdict, to have in tlieir room Wharton’s Criminal Law to consult in relation to their verdict.”

The facts implied in this proposition are not certified to us in such a way that we can apply the law to them. The judge refused to sign a bill of exceptions in Avhich they were recited, and the only bill in which they are alluded to is one taken to such refusal. The appellant, who has taken no steps to compel the judge to certify the facts in the proper form, can not complain. But we deem it not improper to remark that we see no force in the point, if it be presented.

Sixth — “That the court erred in refusing to grant a new trial after it was discovered that the written charge of the court, prepared at the request of defendant’s counsel, had been lost, as well as the charge given at the request of the district attorney and excepted to.”

We do not find any such, reason given in tlie motion for a new trial 'in tlie record, nor anything to show that the document was lost at the time the motion was heard, or that the matter was ever brought in any way to the attention of the district judge as a reason for a new trial ■or in any other view. We can not say, therefore, that he erred, for ■this reason, in refusing the motion for a new trial.

Judgment affirmed.

Rehearing refused.  