The prisoner, David Martin, with one Jim Anderson and Bill Merrick, was on trial for the murder of one Willie Carter* After the evidence for the State was closed, the counsel of Merrick moved the Court to direct a verdict of not guilty to be entered as to- him, upon the ground that there was no evidence against him to go to the jury. The Court remarked that there was nothing in the State’s case showing the guilt of the prisoner Merrick, except the confessions of his co-defendants, which were not evidence against him. “ Therefore,” said the Judge, “I shall direct an acquittal as to him, although I think it not improbable that he was there.” This *633was excepted to by the counsel of the defendant, Martin. It is not seen how Martin could be prejudiced by the remark of his Honor, that Merrick was probably there, meaning at the place of the homicide, for the remark conveyed no opinion of the Court to the jury of Martin’s guilt. It was fully proved and not denied in the argument, that Martin was present at the time and place of the homicide, and his defence was rested, not upon an alibi, but upon the ground, first, that he did not commit the deed, and second, if he did, that it was not murder, but only manslaughter. So, even to pnt the most unfavorable construction upon the remark of the Judge, as intimating an opinion that not only Merrick, but Martin, also, was there, it would be only affirming what the prisoner himself admitted, and did not deny.
This was the only exception. The Court gave the prisoner the benefit of the instructions asked, to-wit; that if the deceased came to his death by drowning, the jury must acquit, because the indictment contained no count for killing by drowning, and to convict, the jury must be satisfied that the deceased came to his death in one of the modes described and charged in the indictment.
We have carefully examined the whole record and find no error.
Pee Ouexam. Judgment affirmed.