| Miss. | Jul 1, 1872
Lead Opinion
This was a conviction under the act of 1848, declaring it to be unlawful for any person to sell vinous or spiritous liquors, in any quantity less than five gallons, within five miles of the University of Mississippi; provided, however, that the act shall “not be construed to prohibit the sale of vinous and spirituous liquors from any drug store, for medicinal purposes.”
The grounds relied on for a reversal of the judgment are 1st. The refusal of the court to instruct the jury as requested by the defendant. 2d. The jury found contrary to law and the evidence.
Both of these questions arise upon the motion for a new trial, which was made and overruled in the court below.
The act of March 3d, 1846, which provides that “when charges or instructions are given or refused, the same shall be noted at the time by the clerk as given or refused, and when so noted or endorsed, shall be a part of the record, without any bill of exceptions, either on appeal or writ of error to the high court
The statute of the 29th of June, 1822, is the' only act which authorizes a party on trial for any criminal offense, when he feels himself aggrieved by any charge or decision of the court, to except thereto, and to tender a bill of exceptions, which, when signed and sealed by the judge, is déclared to be a part of the record. It follows hence, that, unless this is done, no decision made, or charge given, pending a prosecution, will become a part of the record in the case; and consequently, although the clerk may note such charge or instruction as having been given or refused, and transcribe it as a part of the record, the court cannot judicially take notice of it.
It does not appear from the record before us, that the action of the court in reference to the giving or refusing of any instructions requested by either party, was excepted to on the trial. This, according to the plain construction of the statute, was es-sentia], before such action of the circuit court could be made the subject of revision in this. It is clear that an instruction which is given, or one which is refused, is no more a part of the record than the arguments of counsel on the evidence offered at the trial. And it is settled that no matter, which is not necessarily a part of the record, can be made such, except through the medium of a bill of exceptions.
The proper office of a bill of exceptions tendered to the decision on a motion for a new trial is, to place upon the record the motion, and the reasons assigned in support of it; the judgment on the motion, and the evidence, or the substance of the evidence adduced on the trial. But a very loose and irregular practice has crept into use, and has been sanctioned by the decisions of this court. Matter foreign to the legitimate objects of a bill of exceptions to the granting or overruling a motion for a new trial, has been allowed by that means to be introduced into the record. This practice is commended by its convenience, but the confusion and uncertainty which it occasions are sufficient to condemn it. A further departure from the rule of practice laid down by the statute is not to be tolerated.
We cannot, therefore, notice the instructions, which appear
But if the defendant had, in fact, excepted, formally, to the refusal of the judge to grant the charge requested by him, and the instruction given at the instance of the district attorney, the result would not be different. The charge granted for the prosecution was unquestionably correct; and conceding that the defendant’s instruction which was refused, was proper, and should have been given, the verdict ought not to be set aside, as it was manifestly correct upon the evidence.
Judgment affirmed.
Dissenting Opinion
as follows:
I dissent from so much of the opinion of the majority of the court, as holds that it was necessary to take a special exception to the refusal of the court to give the defendant’s instruction. My opinion is, that the bill of exceptions taken to the decision of the court overruling the motion for a new trial, brings before this court every matter which the court below could consider on that motion. ’
The court could certainly, on the motion for a new trial, correct its own error, either in giving a wrong, or in refusing a correct instruction, whether the exception was specially taken at the time or not. The court, then, having committed an error, and having the power to correct it, and failing to do so, the question is, can such refusal be made the ground of an exception ; and if of an exception, can it not be made á ground of error in this court ? I think it can.