GROVER, J.

The question whether a judgment convicting the accused of murder in the second degree, upon a common law indictment for murder, is erroneous, was decided against the defendant by this court, at the June term, 1869, in Keefe v. The People, (1 Hand, 348). In that case such a judgment was affirmed. In that case, the question was raised upon the merits, unaccompanied by any exceptions. Although, in the present case, it appears that exceptions were taken upon the trial, yet none were taken to any ruling upon the point under consideration. In respect to that, this case cannot be distinguished from Keefe v. The People, and the order of the Supreme Court, reversing the judgment and awarding a new trial, must be reversed unless sustained upon some other ground. In the present case we have the entire testimony and proceedings upon the trial. From this testimony it appears that the defendant was not, at the time he caused the death of Bailey, engaged in the commission of any felony other than arson in the first degree, and was not, therefore, guilty of murder in the second degree; but, if guilty of any crime, it was that of murder in the first degree, or of manslaughter in some degree. The counsel for the defendant insists that, although no exception was taken to any ruling made upon the trial, or any exception taken to the charge, yet, when the court can see that the accused has been convicted of a crime of which he was not legally guilty, it is its duty to reverse the judgment and order a new trial, or discharge him, as the case may require. This presents the question, whether the Supreme or this court, upon a writ of error, can review the conviction upon the merits, or whether such review is confined to questions of law arising upon exceptions taken upon the trial. That the latter only can be considered, is perfectly clear. The right of review upon writ of error, in criminal cases, was not given by the common law; it depends entirely upon the statute, and the court possess the power only conferred by the statute. Section 23, 1 R.S., page 736, gives the right to the accused of taking exceptions to the decision of the court upon the trial of indictments, and subsequent sections that of review upon error. These sections show that the right of review embraces only such decisions of the court as were excepted to, and errors that appear in the record. The testimony constitutes no part of the record, and must be disregarded by the court except for the purpose of determining the materiality of exceptions taken to some decision of the court. In respect to the question under consideration, the testimony might as well have been omitted, for with that, neither the Supreme or this court have anything to do. The counsel also insists that he has the right to raise the question, in the present case, for the reason that the case shows that a motion, in arrest of judgment, was made upon this ground in the Court of Oyer and Terminer. The answer to this is, that this was no ground for any such motion; that could only be based upon some defect in the record, and not upon any mistake of the court upon the trial, or of the jury in giving their verdict. I have examined all the exceptions appearing in the case, and arrived at the conclusion that none of them were well taken. The challenge of the juror, Whyland, was rightly sustained by the court. He testified that he was third cousin to the defendant's wife, by marriage. This rendered him incompetent. Potter was a competent juror. It appeared, from his testimony, that he had read an account of the transaction in the newspaper, and derived some impression therefrom; but had no fixed opinion. The testimony of Low, that Bailey was in a playful mood while he and witness were going from the engine house to the place where the transaction occurred, was not material at the time when it was received. It had, at that time, no possible bearing upon any question then presented by the evidence, or any issue in the case. It was, at that time, no more competent than proof of the conduct of Bailey at any other time, or of his general moral character. Such evidence might have prejudiced the defendant, by exciting in the minds of the jury a sympathy for Bailey. The exception thereto was well taken, unless it was rendered competent by the evidence subsequently given. From this evidence the defendant sought to show that, during the time in question, Bailey was excited and vindictive toward the defendant, looking for him for the purpose of severely chastising him. In answer to this, the evidence objected to was proper for the consideration of the jury. This obviates the exception. What the defendant said as to the occurrence after he was arrested, and while on the way to the station house, was properly excluded. It was no part of the res gestæ. The same remark applies to what was said by him after arriving at the station house. The court did not err in denying the motion to strike out the testimony of the declaration of the defendant: "I will kill him." True, the proof did not directly show that the defendant referred to Bailey, but the facts tended to prove that he did so refer. He had a pistol; had been told that Bailey was in pursuit of him, and, upon Bailey's approaching him, there was proof that he told Bailey he had been looking for him. This rendered the testimony proper for the consideration of the jury. The people had the right to show that the defendant's witness, McCormick, went to Boston just previous to a former term of the court, with a view of enabling the defendant to put over the case. This tended to impair his credibility. It is well settled that the comments of the judge upon the testimony, in his charge to the jury, when all the questions of fact are submitted to their determination, cannot be excepted to. All the exceptions taken to the charge are of this character. There was no exception taken to that portion of the charge to the effect that the jury might convict the defendant of murder in the second degree, if they found that his intent to effect the death of Bailey was less deliberate and atrocious than what was requisite to justify a conviction in the first degree. This portion of the charge was erroneous; but, having failed to except thereto at the time, the defendant cannot now avail himself of the error. This, at first view, would seem to be a hardship, that a party should be unable to reverse a judgment convicting him of a crime of which he was not legally guilty. But the apparent hardship is much diminished, if not entirely removed, when it is considered that the defendant deliberately acquiesced in the error, and availed himself of its benefit in preventing a conviction of murder in the first degree. There is no injustice in closing his mouth now, in this respect, when he chose to keep it closed for such a purpose, at a time when the error might have been corrected, had he called attention to it. The order of the General Term, reversing the judgment of the Oyer and Terminer, must be reversed, and that judgment affirmed.

All the judges concurring, except MURRAY, J., who, not having heard the argument, did not vote. Judgment of the Supreme Court reversed, and conviction affirmed.