Buckles v. Commonwealth. on the ground of self-defense unless defendant had no safe means of escape. 3. As the sheriff can not appoint a deputy without the approval of the county court, such approval must be shown to make the appointment valid; and it was therefore error, in the absence of evidence of such approval, to give an instruction assuming that deceased was a deputy sheriff, and had the right to arrest for disorderly conduct committed in his presence. S. M. PAYTON, ATTORNEY FOR APPELLANT. Harlan Buckles, a negro boy about twenty-five years of age, was tried at November term 1901, of the Hardin circuit court and convicted of the crime of murder and his punishment fixed at death. Many errors were committed on the trial as I conceive, and the record does not show that any exceptions were taken and I suppose none were taken. The first question is whether or not this court can look into this record and afford the defendant any relief. My contention is, that if, upon an inspection of the record by the appellate court, it finds errors on the face of the record which are of a nature to cause the court to be of the opinion that appellant has not had a fair and legal trial, that it may and should reverse the case, under section 340, Criminal Code, which provides that "A judgment of conviction shall be reversed for any error of law appearing on the record, when, upon consideration of the whole case the court is satisfied that the substantial rights of the defendant have been prejudiced thereby." I claim that the court erred in giving the instructions which it did give, and also erred in failing to give the whole law of the case to the jury. The court erred in admitting incompetent evidence to go to the jury as to the appointment of the deceased Reid, whom Buckles is alleged to have killed, being appointed and acting as deputy sheriff when, in fact, he was never legally appointed as such deputy. The court erred in assuming in the instructions that deceased was a deputy sheriff, when, in fact, he was never legally appointed such deputy. The evidence shows that deceased was appointed deputy by the sheriff and was sworn in as such by the deputy county court clerk, but no order of the county court was ever made appointing him as such deputy. AUTHORITIES CITED. Criminal Code, secs. 340, 341, 238; 36 Subsec 2; 39, 43, Ruth Buckles v. Commonwealth. erford v. Com., 78 Ky., 639; Williams v. Com., 7 R., 744; Trumble v. Com., 78 Ky., 176; Heilman v. Com., 84 Ky., 457; L. & N. R. R. Co. v. Com., 13 R., 925; McClure v. Com., 81 Ky., 448; Oakley v. Com., 10 R., 886; Tubb v. Com., 22 R., 481; McClung v. Com., 17 R., 1339; Willis v. Com., 20 R., 386; Eversole v. Com., 96 Ky., 624; Arnold v. Com., 21 R., 1573; Wright v. Com., 85 Ky., 131; Kentucky Statutes, secs. 4141, 5660; People v. Lyons, 110 N. Y., 618; Burns v. Com., 3 Met., 13; Barnett v. Com., 84 Ky., 449; Brooks v. Com., 16 R., 356. MORRISON BRECKINRIDGE, ROBERT J. BRECKINRIDGE, ATTORNEY GENERAL, FOR COMMONWEALTH. I am satified that this court, after reading the record in this case will agree with me that the appellant, in killing Reid, was guilty of a deliberate, premeditated, malicious murder, and that his trial was eminently fair; that he had the benefit of all the law and more then he was entitled to, with the single exception of the courts using the word "escape" which has been held to be erroneous, so that if the court adheres to its previous ruling, it is useless to trespass on its patience in arguing the complaints and objections of appellant's counsel, neither one of which is tenable when thoroughly examined and analyzed. OPINION OF THE COURT BY JUDGE DURELLE-REVERSING. Appellant was tried for the murder of Robert L. Reid, found guilty, and his punishment fixed at death. A motion for a new trial was made on the grounds-First, that the finding of the jury was contrary to the law and the evidence; and, second, that the jury was illegally constituted, in that there were members thereof who had publicly expressed their conviction that the defendant ought to be hanged. No affidavits were filed in support of the second ground for new trial, the motion was overruled, and an exception entered to the order overruling it. This exception, which is claimed to have been inserted by the clerk from force of habit, is the only exception we find in the record. The evidence shows that a negro picnic was given on Utopia Island, near Elizabethtown; that a few days before the promotors applied to the sheriff to have Reid appointed a deputy to keep order at the picnic, and that he had Reid Buckles v. Commonwealth. sworn in as deputy before a deputy county court clerk; that appellant went on the train to the picnic, and was drunk and disorderly over a game of craps; that he went across the creek from the picnic grounds, and afterwards returned; that Reid remonstrated with him; that he cursed Reid, and then the shooting occurred, the great majority of the witnesses stating that Buckles fired the first shot,-indeed, the first two shots. There was, however, contradictory evidence as to who fired the first shot. Immediately thereafter a number of the picknickers began shooting at Buckles, who was hit in the stomach and in the arm, and who claims that he received the stomach wound before he fired his pistol. Counsel for appellant contends that there was manifest error to his prejudice in the admission of testimony, and in the instructions given to the jury. But we must first determine whether, as there were no exceptions either to the admission of testimony or to the instructions, we can consider the alleged errors, with a view to reversal of the judgment. Counsel seems to concede that the great weight of authority is against the power of this court to consider any error in the conduct of the case which was not objected and excepted to at the time. In Branson v. Com., 92 Ky., 333 (13 R., 614) 17 S. W., 1019, this rule was announced in the opinion by Judge Holt, and a distinction made between steps proposed by the adverse party and those taken by the court sua sponte; it being held that in the former case an objection should be entered, "in order to specially call the court's attention to it, and, if its ruling be adverse to the objecting party, then he must except. This is the proper practice. It is the express rule of the present Civil Code, and a proper conduct of criminal cases requires, in our opinion, the same practice. The provisions of the Criminal Code ad Buckles v. Commonwealth. mit, and it seems to us to require, such a construction. The trial judge should be made aware, when one side proposes to take a certain step in a case, that it is objected to upon the other side. This is fair to him. The matter is likely then to receive more careful attention from him. The party ought not to wait, as if he were consenting, and then afterwards merely except to what has been done. He should also except to the decision when made; else it can be fairly inferred that, although he objected when the step was proposed by the adverse party, yet he has acquiesced in the court's decision as correct. Loving v. Warren Co., 14 Bush, 316; Reed v. Com., 7 Bush, 641. Where, however, the court, sua sponte, does something, he need only except; but when it comes from the opposing party he should first object, and then, after the court's decision, except to its action." The present counsel for appellant seems to admit the propriety of the practice here outlined, but insists that a different rule has been applied by this court in the case of McClure v. Com., 81 Ky., 448 (5 R., 468), in which the tender age of the defendant, a boy under 14 years, was held to impose upon the trial court the duty, of its own motion, without objection or exception from any one, to protect the accused from all illegal proceedings, and argues therefrom that the same rule should be applied in the case of an ignorant negro, when, through the incompetency of his counsel, proper steps were not taken for his protection. He argues further that, in any event, the rule does not apply to exceptions to the instructions of the court; that it is well settled that, in a criminal case, it is the duty of the court to give the whole law applicable to the case. Williams v. Com., 80 Ky., 313 (7 Ky. Law Rep., 744); Cook v. Com., 10 R., 222 (8 S. W., 872); Louisville & N. R. R. Co. v Com., 13 Ky. Law Rep., 925; Trimble v. Com., 78 Ky., 176; Heil Buckles v. Commonwealth. the jury, al man v. Com., S4 Ky., 457 (8 R., 451) 1 S. W., 731, 4 Am. St. Rep., 207. He contends that in Williams v. Com., supra, where counsel entered a general exception to the instructions, and, though requested by the court, refused to specify the grounds of his objection, the general exception was held sufficient, and the court, through Judge Hargis, said: "Such a rule would operate very harshly in cases where the attorney for the accused might not be able to point out the illegal instruction; and such cases as supposed have and will continue to occur; hence the law makes no distinction between a general and particular exception, as either is sufficient to authorize this court to examine the alleged error based on an exception, taken as in this case." In that case, also, it was held to be the duty of the court to state the law fully and correctly to the jury in the instructions." And so it urged that as the whole law applicable must be correctly given to though it may not be asked, there is no occasion for requiring an exception to be entered, as such exception would not call the attention of the court to any error contained in the instructions, or in any way tend to its correction; that an exception is a useless formality, which has in the MeClure case been disregarded by the court on account of the incompetency of the defendant, and should be disregarded in this case because of the incompetency both of the appeliant and of counsel who represented him in the trial court. in this connection, attention is called to the changes made in what is now section 340 of the Criminal Code of Practice. Section 334 of the Criminal Code of 1854 reads "A judg ment of conviction shall only be reversed for the following errors of law to the defendant's prejudice appearing on the record: (1) An error of the circuit court in admitting or rejecting important evidence. (2) An error in instructing or re |