2 Dakota 372 | Supreme Court Of The Territory Of Dakota | 1881
According to section 248 of the Code of Civil Procedure, when instructions are asked which ¿he Judge cannot give, he shall write on the margin thereof the word, “refused,” and such as he approves, he shall write on the margin thereof “ given.”
From an inspection of the record in this case, it is apparent that the defendants asked five specific instructions, in writing, from the Court, and that the Statute above referred to was not complied with. There is no writing on the margin thereof to disclose whether any of them was refused or given, nor is there any endorsement upon them to disclose what disposition the court made of them.
In the charge of the Court to the jury, incorporated into the record by the bill of exceptions, we find, however, that whilst the Court gave defendants’ request, numbers one, four, and five, to the jury, yet it was with admittedly further explanations, which modified or changed the tenor of those requests. This, in our view, cannot be done. The Judge, in our opinion, should have refused these points if they did not correctly state his own view of the law governing the case. Upon refusing them, he was still at liberty to state the general rule with any exceptions thereto, which, in his opinion, would govern the case as disclosed by the evidence. The course pursued was likely to confuse the jury ; and at all events the party was entitled to a direct response to his requests in the mode expressly provided for by the Statute.
In the charge to the jury we find the following, to-wit: “ Instructions Nos. 2 and 3 asked by the defendants are refused except as given hereafter by the Court, (Nos. 1, 4 and 5 read to the jury, with the following explanations by the Court.) I give you these instructions, but right here I must give further explanations.” Then follow the explanations or modifications.
We have already decided, in Holt v. Van Epps, and in Dole v. Burleigh, (1 Dak. Rep., 224 and 235,) that errors patent upon the record are open to revision here, without exception taken in the District Court; and that such errors as are apparent from an
We cannot omit to refer to the defendants’ exceptions to the Judge’s charge, because they do not seem to come up to the requirements of the law.
An objection or exception should state the point with accurate clearness, so that there can be no question in the Appellate Court relative to what the question is. Exceptions to the charge of a Court should point out the specific portions of the charge excepted to. If talcen to “ each and every ruling severally, separately and distinctly,” it amounts to nothing. The office of an exception is to point out some specific error in law, and the counsel should, by his exception, lay his finger upon the precise request refused, or the error in the charge, not only that the court may, upon the error being pointed out, correct it, but also that the court of review may not be left to spell out and dig up errors which after they are discovered, may be more apparent than real, and may have arisen from mere inadvertence or misapprehension upon the trial.
Upon examination of the defendants’ exceptions to the charge, it will be found that no part of the charge is embodied in the exceptions. For these reasons it is not incumbent upon us to notice, as to the charge, any of the points attempted to be made by such imperfect exceptions.
