committed only amounted to manslaughter, or that accused was justified or excused in committing homicide."
This is correct, being an exact copy of sec. 1252, Gantt's Dig., and was properly given. This instruction should have been accompanied with a full definition and explanation of the degrees of homicide.
The court read from Gould's Digest, chapter 51, part IV, article I. This was not excepted to at the time, and the point was lost; but having been made one of the grounds for motion for new trial, we will pass upon it. The objection to this is, that it was not in writing. The objection is not well taken. When a given and well defined section of a statute is read from the Digest as an instruction to the jury, it is sufficiently fixed, permanent and known, to come within the substantive terms of the law which requires it to be in writing; for in preparing a bill of exceptions, it is always conveniently accessible. In this bill of exceptions, it is simply referred to, and not inserted. Yet we know exactly what was read, and it tended to remedy some of the evils of the neglect to define the degrees of homicide, for this article does define the degrees of murder.
The 24th ground of the motion for new trial was that the jury were allowed to take with them when they retired to consider of their verdict, papers which had not been received as evidence in the case, to wit: the motion and affidavit of defendant to set aside the indictment and subpoenas issued for witnesses in this cause.
The jury should not take any paper which contains statements of facts bearing on the case, which was not read in evidence to them. The only paper above named which might have been objectionable on this ground was defendant's motion for a continuance. This is not prejudicial to appellant, being his own statement, and states the facts he expected to
