Posey v. . Patton

Clakk, J.: The prayer for instructions came too late. It should have been asked at or before the close of the evidence. The Code, §§ 414, 415; Powell v. Railroad, 68 N. C., 395; Davis v. Council, 92 N. C., 725; State v. Rowe, 98 N. C., 629; Taylor v. Plummer, 105 N. C , 56; Marsh v. Richardson, 106 N. C., 548; Grubbs v. Insurance Co., 108 N. C., 472. This is a just and reasonable requirement. It is not fair to the opposite party to ask the Judge, at such a late moment, for an instruction to be given or refused, hastily perhaps, at the peril of a new trial with the consequent expense to parties, which might be avoided if the instruction was asked at or before the close of the evidence, when the Judge would have fair opportunity, during the argument of counsel to the jury, for the consideration of the legal propositions involved. A trial is not intended to be a game of surprises, but a calm, orderly, deliberate settlement of the matters in controversy. It is not to be supposed that there was here any intention of counsel to take advantage by the sudden presentation of the prayer *457 for instruction, but the reason of the requirement is shown in this very case where the learned Judge thought he had already given the instruction asked, and counsel now contend that he had not. It is true the Judge did not put his refusal of the instruction on the ground that it was asked too late. The law does that. It was incumbent on the appellant to prefer the request to charge in writing and in apt time. When it appears that either of these requisites was wanting, the exception for failure to give the charge cannot be sustained. It does not appear that the request to charge was read in the presence of the jury. We presume that it was not. If it was not, the jury could draw no inference prejudicial to the appellant from its refusal, nor can he complain of an omission to charge on a particular phase of the case as to which, no instruction was properly asked. Boon v. Murphy, 108 N. C., 187, and cases there cited. ' If the prayer for instruction was read in the hearing of the jury, still less was the appellant prejudiced, as the remark of the Judge, even if incorrect, that he had already given such charge, was equivalent to telling the jury that such was the law. As to the memorandum on the issue, the case states that the Court, discovering that it had not been erased, of its own motion and very properly, called the matter to the attention of the jury with the purpose, it must be presumed, of setting the verdict aside if any prejudice had been caused by the inadvertence. “The jury made answer that they had given the memorandum no consideration.” If there had been anything tending even to put it in doubt, whether prejudice may not have been done the appellant by the inadvertence, we feel sure that the just Judge who presided would unhesitatingly and promptly have set the verdict aside. It seems the appellant’s counsel did not think their client had suffered any harm, for they neither made any exception then nor moved for a new trial on that account. The exception on that *458 ground was first taken in making out appellant’s case on appeal. This was too late, even if there had beén any merit in the exception. It has been often held that an exception to the charge, or for a refusal to charge,, may be taken for the first time by appellant on stating liis case on appeal. Taylor v. Plummer, supra; Lowe v. Elliott, 107 N. C., 718; but that exceptions as to all other matters must be taken at the time or they are waived. The Code, § 412 (2); State v. Ballard, 79 N. C., 627; Scott v. Green, 89 N. C., 278; State v. Brown, 100 N. C., 519; Bank v. McElwee, 104 N. C., 305. No error.