78 S.E. 210 | N.C. | 1913
The defendants were charged in the court below with conspiracy. The prosecution originated in the police court of Asheville, by affidavit of C. G. Lanning and a warrant based thereon. *527 Defendants were convicted in that court, and appealed to the Superior Court, where they were again convicted, and from the last judgment they have appealed to this Court.
It is unnecessary to consider the numerous exceptions in the case, as it appears therefrom that at the close of the evidence the defendants requested the judge to put his charge to the jury in writing, which he refused to do. Exception was duly taken to this ruling, and the same is assigned as error.
We are compelled by the statute and the decisions of this Court to sustain this exception. Revisal, sec. 536, provides: "Every judge, at request of any party to an action on trial, made at or before the close of the evidence, before charging the jury on the law, shall put his instructions in writing and read them to the jury; he shall then sign and file them with the clerk as a part of the record of the action." We have held that this provision of the law is mandatory, and if the judge fails to comply with a request duly made that he reduce his charge to writing, a new trial will be ordered, if proper exception is noted in the case on appeal.Currie v. Clark,
S. v. Young,
We are satisfied that the careful and learned judge who presided at the trial must from some cause have been inadvertent to the request of counsel; but, as we have shown by the decided cases, even this is fatal to the verdict and judgment.
The State asked for a certiorari, so that the solicitor could file a counter-case on appeal, upon the ground that the defendants had filed their case with him after the time fixed by the agreement of the solicitor, who had waived this irregularity. It is alleged that there was an express agreement, and if not, then an implied agreement, that the solicitor should have more time to file a counter-case, but this is (640) denied by the defendant's counsel. Rule 39 (
There is a question raised by defendants as to the final jurisdiction of the police court in this case, and as to the power of the Superior Court to try the case merely upon the affidavit and warrant. This objection, if tenable, may be obviated, perhaps, by requiring a bill to be sent to the grand jury and an indictment returned. But this is only a suggestion, to be followed or not, as may be deemed proper.
The error in refusing to write the charge and read it to the jury requires a
New trial. *529