¶1 The exceptions upon which the prisoner founds his application for a venire de novo, and also for a new trial, have been carefully examined and considered by us, and we are unable to find anything in either of them to prevent the sentence of the law from being passed upon him.
¶2 1. The objection raised by the prisoner’s challenge to the array of the special venire was urged and overruled at the last term in the case of the State v. Owen, Phil., 425.
¶3 2. On the application for a new trial, the objection to the exclusion of the testimony of Bickerstaff, in relation to sore throat in the family of the deceased, cannot avail, because the *35 ■objection was immediately withdrawn, and the prisoner had liberty to introduce it if he chose. He did ask the same question of another witness, and it was answered. Whether the •question was relevant or not, he cannot complain that he was •deprived of the benefit of an answer to it.
¶4 3. There was not the slightest evidence of a mutual corn-hat, and the Judge was right in refusing to give the charge asked upon the supposition that there was. As early as the case of Freeman v. Edmunds, 3 Hawks, 5, it was decided that a Judge should not charge a jury on a point upon which no testimony had been offered. See also State v. Benton, and other cases referred to in the Digest, Vol. 2, Tit. Practice, Judge’s Charge.
¶5 As we find no error in the record, it must be so certified to • the Superior Court of Law for the county of Cleaveland, to the end. that the sentence of the law may be executed upon the prisoner.
¶6 • Per Curiam. There is no error.