28 Fla. 735 | Fla. | 1891
The first assignment of error, that the court erred in overruling the motion for a new trial, involves all the questions presented for our review. "We will first consider the exceptions to the charges of the court.
The second assignment of error relates to a portion of the first charge given to the jury. After reciting
The third assignment of error is based upon another portion of the charge given by the court to the jury.
Counsel for plaintiff in error in his brief filed here says that assignments of error not referred to therein are abandoned. No reference is made in his brief to the fourth assignment of error, and the same is, therefore, expressly abandoned here. We do not think,
The fifth assignment or error calls in question a portion of the second charge given by the court to the j ury. The portion of the charge here assigned as error was not excepted to at the time it was given, or in a motion for a new trial. The record shows that in the motion for a new trial the only excejotion taken- to the second charge was to it as an entirety. The plaintiff in error having failed to except in the court below to the portion of the charge now assigned as error, cannot avail himself of such exception here; he must rely upon his exception to the entire charge. It is well settled that a general exception to a charge, or a general exception to several charges, will not be good if the charge or any one of the charges contain a correct proposition of law applicable to the case. Baker vs. Chatfield, 23 Fla., 540; Metzger vs. State, 18 Fla., 481. By a reference to the charge numbered two, it will be seen that it contains several correct statements of law applicable to the case before the jury. We are, therefore, unable to consider the portion of the charge here assigned as, error, and express no opinion as to it.
The seventh assignment of error cannot be sustained. There is nothing in the bill of exceptions showing that the Judge used the language assigned as error here. In his motion for a new trial, plaintiff in error assigned this as aground, but the recital in the motion does not afford evidence that the Judge used such language. For a full discussion on this point see the cases of Parrish vs. Pensacola & Atlantic R. R. Co., and Richardson vs. State, decided at this term.
For the error above pointed out, the judgment is reversed and a new trial awarded.