State v. Killen

SAYRE, J. In this ease the state applies for a writ of certiorari to review the judg- ■ ment of reversal rendered by the Court of Appeals. This court is of opinion that charge B given at the instance of the prosecution was capable of the interpretation suggested by the Court of Appeals, and that it would have been refused without error. But, since the charge was given, the question of reversal on that account depends upon the probability that it did mislead the jury, and this in turn depends upon a consideration of the evidence, which we have not before us. We must presume that the Court of Appeals, looking to the record of- the evidence, concluded that the charge had probably misled the jury, and for that reason ordered a reversal, or, at least, this court thinks that it must presume that the Court of Appeals may have taken that view, and, since nothing to the contrary appears, this court will not affirm error of the ruling by the Court of Appeals. Certiorari denied. All the Justices concur, except McOLELLAN, J., who dissents.