Owens

(dissenting). Although a portion of the charge to the jury, when taken by itself, is erroneous, it is doubtful whether the error is such as to justify a reversal of the judgment, when the instruction is considered in connection with other portions of the charge, in which the court twice properly instructed the jury upon the law applicable to the proposition involved in the objectionable paragraph. But I think that we are precluded from considering the alleged error, for the reason that no exception was taken to the charge at the time of the trial. The bill of exceptions shows that after the cqurt had instructed the jury, and as the latter were retiring from the courtroom, the attorney for the defendant stepped forward to the judge and said to him that he wished to except to the charge, but that it was impossible for him intelligently to do so until he could, take the instructions and examine them, and that he thereupon inquired of the judge whether he had any rule of court as to the manner of taking exceptions to instructions- — that is, “whether such exceptions should be taken orally''or in writing” — to which the judge responded that he had no rule on the subject, and directed…

The plaintiff in error was charged by indictment with having killed one Carl Christensen, “purposely and of his deliberate and premeditated malice,” by cutting and stabbing him with a knife, and, after trial, was convicted of murder in the second degree, upon which conviction he was sentenced to imprisonment. The homicide was the result of a combat with knives between the deceased and the plaintiff in error, in a cabin occupied by the latter, at a remote spot in the territory of Alaska. No one was present but the participants. At the trial the plaintiff in error testified in his own behalf to the effect that the deceased commenced the fight by attacking and cutting him with a knife, and that, to protect his own life, he was compelled *280 to, and did, inflict the wounds resulting in the death of Christensen. In considering the instructions given by the court below, to which exceptions were taken by the plaintiff in error, it must, of course, be assumed that the jury may have believed that testimony of the defendant; and upon that point of self-defense, which was, indeed, the only defense interposed, the court below instructed the jury as follows: “The defendant in this case…