State Ex Rel. Merrell v. Whitmire

Clark, J.: The offer of the plaintiff to show by a witness that he had heard T. T. Loftis say that he had altered the returns of Dunn’s Rock township was properly denied. If. Loftis had been a party to the action, his admissions against his interest would have been competent, as would have been his declarations as to his qualification to vote when made at the time of voting, or prior thereto, if his vote were in controversy. Boyer v. Teague, 106 N. C., 576. If he had made the alleged statements in presence of the defendant without hi.s denying the charge, the evidence might have been received on the ground of the implied admission by the defendant’s silence, if the circumstances were such as to call for notice of the remark by him ; or if Loftis had been a witness in the case, his previous statements in regard to the matters testified to by him should have been received to corroborate or contradict him. But the “hearsay” evidence here does not come within any of the exceptions. That Loftis was a friend or partisan of the defendant, could not make his ex parte unsworn statements competent evidence against the defendant, any more than similar statements by anyone friendly to any other litigant could be received as evidence against him. The exception that the Court did not “submit to the jury the evidence as to the voting in Hogback township,” cannot be sustained. It does not appear that the Court excluded such evidence, nor is there any suggestion to that effect beyond the bare assignment of it as error. We cannot *370 assume that the assignment of error is a correct statement of the facts therein recited, when such facts do not appear in the case stated by the Court. Walker v. Scott, 106 N. C., 56. The registration books and the poll-books of Hogback and other townships were identified by a witness, but the case states that the books themselves “ were not put in evidence, nor wore read to the jury, nor did the plaintiff offer to read them, and the only evidence that the registration laws were not observed in said township was the identification of the registration books.” If, indeed, however, there was an omission to charge in a particular aspect of the case, it was not error, unless the Judge was asked to do so. Terry v. Railroad, 91 N. C., 236; State v. Bailey, 100 N. C., 528; Bethea v. Railroad, 106 N. C., 279. The requests to charge, handed up after the argument begun, were too late. They should have been asked at or before the close of the evidence. The Code, §§414, 415. It is but fair to the opposite side, and in the interest of the regular and impartial administration of justice, that requests to charge should be asked in writing and within the time prescribed by the statute, so that there may be time for the Judge to.consider the requests during the argument of counsel to the jury. Some time must be fixed after which it is too late for the party asking the prayers to insist upon their being granted. The requirements of the law in this regard are well known, and it is the plaintiff’s ovra fault that he did not observe them, and hand up his requests to charge in proper time. This rule of practicehas been recently reaffirmed in Posey v. Patton, 109 N. C., 455, in which case the authorities are cited, and the reason for the law noticed. The defendant contested the vote of one Tompkins; and the Court instructed the jury that “if Tompkins, who was a married man, came to the county of Transylvania not intending to become a resident of the county, but to take charge of and conduct a newspaper until after the election, and then *371 go awaj, and left his family in the comity of Jackson, and his family resided in the county of Jackson, and remained there until the 14th of September, before coming to Transylvania County, he was not entitled to register and vote in Transylvania County, unless it was ninety days from the time his family came into the county to the day of election.” It was admitted that if Tompkins was not a resident of the county until his family came there to reside, he had not been a resident of the county ninety days before the election. The plaintiff excepted to this instruction. If erroneous, it is so only on the ground that the jury might understand it to mean that though Tompkins had come into the county temporarily, intending to remain only to conduct a paper during the canvass and leave after the election, yet he would be a competent voter if he came ninety days before the election and brought his family with him. The Code, § 2680. This would not be an error of which the plaintiff could complain. Affirmed.