¶1Opinion by
¶2The trial of the appellant, John- Sexton, upon the charge of killing George Router (or Rowden) on July 31, 1884, resulting in a death sentence.
¶3His application for a continuance was properly overruled because the court afforded him an opportunity to- procure his absent witnesses and the record shows that when the trial was had all of them were present save one, and the appellant’s statement as to- what this one would prove was upon the trial admitted as true by the commonwealth.
¶4Judging from the verdict of the jury and the testimony in the record, any public excitement or prejudice against the appellant-existing at the time of the trial had been created by his -own wrongful act, and the court below was the proper tribunal to- judge whether under all the circumstances the trial ought to- be had, and we can not review its action in this respect.
¶5This court has so often decided that it will not reverse upon a point that is first raised upon the motion for a new trial, that this may now be regarded as a settled rule.
¶6If improper statements were made to the jury by the prosecuting attorney in the concluding argument to them, an exception could *149have been taken. This was not done nor does the bill of exceptions disclose their nature.
¶7The affidavit of the appellant filed1 on the motion for a new trial can not be considered as evidence in the case, and if we were in doubt whether the testimony sustained the verdict we would not feel at liberty to reverse the action of the jury as it was their province to judge of the guilt or innocence of the defendant, but in our opinion it was fully sustained by the evidence.
¶8As a guide to the finding they were properly instructed. The appellant claimed that he did not commit the deed. The testimony shows peremptorily and satisfactorily that it was a killing for plunder. There was no question of manslaughter or self-defense at issue in the case. The crime was murder and the appellant either guilty or innocent.
¶9It has been decided that the trial court must instruct the jury upon all the law of the case whether it is asked to do so or not, but in this instance there is no fact or incident shown by the testimony from which the least inference can be drawn that the killing was in sudden heat and passion, and instructions should not be given regardless of all application to the facts of the case and which will only tend to confuse the jury and hide the truth.
¶10The jury were properly instructed as to the reasonable doubt and as to the true issue in the case and the judgment is affirmed.