v.
State
1. For his first impropriety the solicitor-general wan improved by the court, and he made a prompt and public apology. In all probability- this counteracted and corrected any effect harmful to the accused which that impropriety was calculated to produce on the jury. His second impropriety was passed sub silentia until the trial was over. The wait was too long. Nobody complained, the court’s attention was not called to it, no ruling upon it was requested or made. The solicitor-general erred, but we cannot say the court did,—at all events, not to such extent as to be cause for a new trial.
2. In charging the jury upon the prisoner’s statement, the court omitted to say, either in the words or the sense[*21] of the statute, that they could believe the statement in preference to the sworn testimony. Of course this ought to have been said, for the whole law of the statement should be charged. The omission was evidently by oversight, and the faintest suggestion from the able and vigilant counsel of the accused, if made in time, would have caused the court to supply the omitted words. But this would have lost the point afterwards, made on the charge; and to save it was, perhaps, desirable as matter of deliberate forethought. Counsel should aid the court rather than seek to store up a mere lapse of this sort as ground for a new trial.
3. The evidence was sufficient, and overruling the motion for a new trial was not error.
Judgment affirmed.