On tbе trial in tbe Superior Court it was “conceded and admitted tbat tbe store bad beеn broken into and robbed, and tbat tbe only question for tbe jury to decide was wbetber it bad been proven beyond a reasonable doubt tbat tbe defendant was tbe guilty рarty.”
Tbis is tbe statement in tbe record, and it answers tbe criticisms of tbe charge, wbicb are mainly directed to tbe failure to “state in a plain and correct manner tbe evidence given in tbe case, and declare and explain tbe law аrising tbereon,” as required by statute, Kev., 535, as it reduced tbe whole controversy to tbe determination of one fact, freed from tbe consideration of any legаl question. .
It also appears there were no requests for special instruсtions to tbe jury, and “A party cannot ordinarily avail himself of any failure to charge in a particular way, and certainly not of tbe omission to give any special instruction, unless be has called tbe attention of tbe court to tbe matter by a рroper prayer for instructions. So if a party would have tbe evidence rеcapitulated, or any phase of tbe case arising tbereon, presented in tbe charge, a special instruction should be requested.
Boon v. Murphy,
Tbis principle is not disturbed by what is said in
S. v. Cline,
Tbe defendant specially complains of tbe following charges to tbe jury;
“1. There is no contention about tbe 'breaking or tbe larceny, both are admitted, and should givе you no concern, as they are eliminated from your consideration. You are to find wbetber tbe defendant committed tbe larceny. It is your duty to ascertain tbе truth from tbe evidence, and in so doing you may consider not only what tbe witness said, but their demeanor on tbe stand.
“2. Tbe evidence is circumstantial. Tbe court charges you tbat circumstantial evidence is a recognized instrumentality of tbe law in finding truth, and is essential in our .practice, but it should be closely and cautiously scanned, and each fact proving a necessary link in tbe chain of circumstances must point tо tbe guilt of tbe defendant. It has been compared to tbe strands of a rope, where no one strand may be sufficient in itself, but all together may be strong enough to рrove tbe guilt beyond a reasonable doubt.
“You must be satisfied beyond a reasonable doubt as to each material fact in tbe chain of circumstancеs. You are tbe sole judge of tbe evidence.”
*678 Tbe first of these charges doеs not contain the statement that the defendant admitted his guilt., but that the breaking and stealing by some one was admitted, which is the position maintained by the defendant throughout thе trial, and the second is correct as a legal proposition.
It may havе been well to add that the circumstances found by the jury to exist must exclude every оther reasonable conclusion except the guilt of the defendant, but the fаilure to do so is not reversible error in the absence of a special request to so instruct the jury.
"We have examined the exceptions to evidence, and none of them can be sustained.
It was competent for the prosecuting witness to give an account of all the goods lost from the store in order.that the State might have the opportunity to trace some or all of the articlеs to the defendant, and the declaration of the witness as to the identity of onе of the articles was admissible as a quasi admission of the defendant, because mаde in his presence, and he made no denial at the time.
It was also in corroboration of the witness.
The exception that the defendant was not allowed to state the wages he was earning, if the evidence was competent, is contradicted by the record, which states that the defendant testified he received $12.50 per week, and it nowhere apрears that this was withdrawn from the jury.
The evidence fully sustains the verdict, and we find no error in the trial.
No error.