37 Vt. 471 | Vt. | 1865
It seems that no exception was taken to the charge of the court till after the verdict had been returned. It is an established rule, conformable to which the practice has been uniform so far as we know, that exception to a charge must be taken at the close of the charge, and before the jury retire from the jury-box. Under this rule the case is not properly before this court.
But if it was, in our opinion the. point made is untenable. In the first place, it is not claimed that the instructions given to the jury are erroneous. In the next place, no aspect or posture of the case is presented, which required the court, as matter of legal duty, and without special request in that respect, to give the instruction, for the omission to give which the exception was prayed for. Error must be- affirmatively shown in order to be available in this court. But again, we think 'it was not the duty of the county court, in any supposable aspect of the case, to give the instruction now claimed as necessary to have been given. It is inferable from the exceptions, that the respondent had invoked the exercise of the technical right and power of the jury to judge of the law as well as of the fact. We are not prepared to question the right of counsel to take this course. But when they do it, we are ignorant of any principle or precedent for holding that the court may be required to exercise any more restraint upon the jury, against the hazard of committing an error in the law prejudicial to the respondent, than of committing a like error to the prejudice of the prosecution. When the respondent, or learned counsel, presume to secure advantage by assuming the su-'
The exceptions are overruled, and the case is remanded to the county court for sentence.
