12 S.E. 383 | N.C. | 1890
"The case stated for an appeal to this Court," in the words of Ruffin,C. J., "is here taken to be absolutely true as to all matters *490
(719) which occur on the trial, or purport to have been acted on in the court from which the appeal comes." S. v. Reid,
Exceptions to evidence, and all matters other than the charge, must be taken at the time [The Code, sec. 412 (2) ], or are waived. S. v. Ballard,
The assignment of errors in the instructions to the jury is the act of the appellant. It is his assignment of error, and must appear upon the face of his statement of the case on appeal. It is not a matter which must occur or not occur on the trial, and as to the occurrence or nonoccurrence of which the judge must determine in settling the case.
It is true, counsel, in assigning error to the charge, or for granting or refusing instructions, may recite in his exceptions the charge differently from what the judge says it was. In such case the charge (720) as stated by the judge must govern, as was pointed out in Walker v. Scott,
Per Curiam. Motion allowed.
Cited: Boon v. Murphy,
(721)