Opinion of the Court-STILES, J. [2 Wash. the cross-examination concerning his movements from the evening of the 14th on; and of that of the prosecution's witnesses on the same point. Speaking of the latter, there are such expressions as these: "Do they lie about it? Did they mean to lie about it?" Concerning defendant: "This story that he tells you about where he went to, if it is true, notwithstanding some of it may seem a little improbable, . . that is his story; of course, if it is true, he was not out here where Longstaff, Noonan and Stewart say they saw him." The concluding remark was: "It is for you to say, gentlemen, whether he shot Scherbring or not;" but after so "impartial" a discussion, if any juror of the twelve had been weak enough to be influenced by what the court's opinion of the undecided fact was, his verdict could not be long doubtful. There is a technical objection made to our consideration of the charge, under this aspect, by the counsel for the territory, because the exceptions taken immediately after its delivery, twenty-two in number, were all very brief, and each merely called the attention of the court to a phrase or two which was formally objected to. There was no exception to the whole or a part of the charge, on the ground that it was an argument upon the facts to the prejudice of the defendant. It is true that generally we expect to be called upon to pass upon those portions of a charge which are alleged to misstate the law, only when the error was called to the attention of the court below, and the objection raised by exception. But the error in this case was not one of statement concerning the law of it, which might have been corrected upon a recall of the jury. This was an error of conduct on the part of one branch of the court by assuming the functions of the other branch - an error which was May, 1891.] men. Opinion of the Court-STILES, J. irreparable with the jury then in the box, because the argument and conclusions rehearsed in their presence were incapable of recall; they had made their impression the instant they were uttered, and no correction from the same source would have had any effect except to confuse juryThis matter was fully argued in print, so that there was no surprise in this court; and, from the language of several of the exceptions actually taken, we think it probable that the same question was presented to the court below on motion for a new trial. In a capital case, if there was prejudicial error which is patent upon the face of the record, the appellate court should not allow technical objections to deprive the defendant of a new trial. Here the error was prejudicial to the extent of denying the accused that fair and impartial trial which was his right, no matter what may have been the degree or heinousness of his offense; and the error is too patent to be mistaken. There were some specific errors which it is not necessary to notice, as they are not likely to occur upon a retrial. This holding decides the case, but we cannot refrain from going beyond the suggested errors of commission in this charge to notice one of singular omission. The opening words of the charge were: "The defendant here is charged by the grand jury of this county with having committed the crime of murder by shooting a man by the name of Scherbring on the 14th day of last July," and there all allusion to the crime charged or the elements constituting the crime ended. The indictment alleged murder in the first degree, but no explanation was given of the facts necessary to be shown to warrant a conviction, either by reading the statute or by equivalent oral statement. Nor were the jury informed that under §§ 786, 790 and 1097 of the code, if they found that the prisoner did shoot the deceased, unless they also found deliberation and premeditation, they could return a verdict of murder in the second degree only. On 24-2 WASH. the contrary, having said to them that the only question left was, "did the defendant shoot him?" the court furnished them with two forms of verdicts, the first of which was, "We, the jurors in this action, find the defendant not guilty;" and the other was, "We, the jury in this action, find the defendant guilty as charged in the indictment." The court was not called upon in this case, under the evidence, to instruct in regard to manslaughter, at least without a request therefor; but to omit to define the degrees of murder, and to give the jury the liberty of saying under which head the facts proved a crime, was so great an oversight that it is to be accounted for only upon the theory that the discussion of the facts to so much length overshadowed the fundamental law of the case, and caused it to be forgotten. The judgment is reversed, and a new trial granted. ANDERS, C. J., and HOYT and DUNBAR, JJ., concur. SCOTT, J., concurs in the result. [No. 134. Decided May 14, 1891.] THE STATE OF WASHINGTON, on the Relation of Dominico Coella, v. W. F. FENIMORE, Clerk of the Superior Court of Jefferson County. CONSTITUTIONAL LAW-COSTS ON APPEAL-DEFENDANT WITHOUT MEANS. A person convicted of murder is entitled, on appeal, to a transcript of the record at the expense of the public on showing that he is without means and unable to pay the clerk's fees therefor. (DUNBAR, J., dissents.) Original Application for Mandamus. John Fairfield, and Daniel Kelleher, for relator. May, 1891.] Opinion of the Court-HoYT, J. The opinion of the court was delivered by HOYT, J.-Relator was convicted of murder in the first degree and sentenced to death. He gave notice of appeal to this court, and to perfect the same sought to have the clerk transmit a transcript of the record. The clerk declined to do this unless the fees for preparing the same were first paid. Relator thereupon showed that he was without means, and was absolutely unable to pay such fees. Under these circumstances, relator was entitled to such transcript at the expense of the public. The writ of mandamus must issue as prayed. ANDERS, C. J., and STILES and SCOTT, JJ., concur. DUNBAR, J. (dissenting).—I dissent. I know of no provision of law, either statutory or constitutional, empowering the court to authorize the disbursement of public funds to aid a defendant to prosecute his appeal to the supreme court. Section 22, art. 1, of the state constitution, relied upon by counsel for appellant, in my judgment does not touch this case. That section simply guarantees to the accused the right of appeal in any case; that is, provides that the right of appeal in criminal cases shall not be taken away by statute; and the final judgment referred to in said section refers to final judgment in the superior courts. Such was the construction placed upon it in Stowe v. State, ante, p. 124, decided by this court at its last term. The payment by the state of the costs of appeal in a criminal action, where the defendant is not able to pay, might be a humane policy for the law to adopt; but as the law-making power has not seen fit to adopt such a policy, it is not within the inherent power of the court to grant the relief asked for. 1 Opinion of the Court - ANDERS, C. J. [2 Wash. [No. 204. Decided May 14, 1891.] JENNIE HIGGINS V. JAMES BURNS. DISMISSAL OF APPEAL-FAILURE TO FILE TRANSCRIPT AND BRIEFS. Where appellant fails to cause a transcript to be prepared, and to serve and file a brief as required by rule 6 of the supreme court, without satisfactory excuse for the failure, the appeal will be dismissed on appellee's motion therefor, accompanied by a certified copy of the judgment and notice of appeal. Appeal from Superior Court, Pierce County. Town & Likens, for appellant. Carroll, Coiner & Davis, for appellee. The opinion of the court was delivered by ANDERS, C. J.-Appellee moves to dismiss this appeal, and to affirm the judgment of the court below for the reasons: (1) That appellant has failed to cause a transcript to be prepared, and to serve and file a brief, as provided by rule 6 of this court; and (2) that the original amount in controversy herein does not exceed the sum of $200, and the action does not involve the legality of a tax, impost, assessment, toll, municipal fine, or the validity of a statute. Judgment was rendered in the lower court on September 6, 1890, and on September 17, 1890, notice of appeal to the supreme court was duly given. This motion was filed on April 27, 1891, at which time no transcript had been prepared, and no briefs had been filed. No satisfactory reason or excuse is given for the failure to comply with rule 6 of this court, and, appellee having filed a certified copy of the judgment and notice of appeal, in accordance with the provisions of rule 9, the appeal will be dismissed, with costs to appellee. It is not necessary, under the cir |