4 Indian Terr. 550 | Ct. App. Ind. Terr. | 1903
We have examined the record upon the first assignment of error — that the court erred in refusing to grant appellant a continuance — and do not think that the court erred therein, as it was in his discretion, and the appellant had had one continuance on the ground of the absence of this testimony, and we find no error in his refusal to grant the continuance prayed.
The second assignment of error is that the court erred in •charging the jury. We have examined the court's instructions, and there is no doubt but that the instructions as given by the court embody the law as it now exists, and, inasmuch as defendant has not offered any instructions to the court whatever, and only makes the objection that the charge of the court was on general lines and general propositions of law, he is not in a position to complain. And as to the second assignment of error, the same is not found sufficient to reverse the court. In other words it is a plain and well-established rule of law that, before a defendant or other person can be heard to complain of any particular instruction of the court, such party must call the attention of the court to the instruction complained of at the time the same was given, and offer to the court, in lieu of such supposed erroneous instruction, what .the defendant claims to be correct instruction upon the particular proposition involved. And in this case there was no such attempt on the part of the defendant, and the second assignment of error — that the court erred in its instructions — will not be further considered.
The third assignment of error by the defendant is as follows: “The court erred in absenting himself from the court room during the opening and closing arguments in this cause, during which
It is our opinion that the authorities universally lay down the rule to the effect, and in substance, that the trial judge must be in attendance upon the trial at all its stages; not merely accessible to the call of attorneys, but his very presence should be in superintendence of the trial. We do not think that the rule is so strict that the trial judge may not vacate his bench, or, for the moment, withdraw from the apartment in which the trial is in progress; but his presence should be felt at all stages of the trial, and the same should be at all stages and at every instant under his control while the same is in progress, and to sustain this view we cite the following eases: Stokes vs State (Ark.) 71 S. W. 248; J. H. Ellerbe vs State of Mississippi (Miss.) 22 South. 950, 41 L. R. A. 569, and cases therein cited.
We have examined the instruction of the learned trial judge in the court below, and do not find such instructions to be erroneous in their statements of the law. We have also examined with much interest and circumspection the evidence in this case, and, without expressing any opinion as to’the weight given the evidence by the jury, we are inclined to think that this ease should have been retried upon its merits, and, inasmuch as we think the absence of the trial judge from the courtroom during the progress of the trial was prejudicial, and upon that ground alone the case should be reversed and remanded, we shall content ourselves with reversing and remanding the case for a new trial, which is accordingly done.