Boon v. . Murphy

fiT.A-R.-R-, J. after stating the case: As to the exception that the Judge did not repeat the testimony nor recapitulate it beyond the summary of it which appears in the charge, the precedents are ample that this is not error, unless the appellant had requested the recital in full of the testimony or of *191 such parts as he deemed material, and which had been omitted by the Court. The law is so stated by Taylor, C. J., in State v. Morris, 3 Hawks., 388, and approved by Henderson, C. J., and Ruffin, J., in State v. Lipsey, 14 N. C., (3 Dev.) 486, where it is again held “ the Judge is not bound to charge on all the facts, that being a matter left to his discretion.” In State v. Haney, 19 N. C., (2 Dev. & Bat.) 390, it is held by Gaston, J., citing State v Lipsey, that the “Judge is not bound to recapitulate all the evidence to the jury; it is sufficient for him to direct their attention to the principal questions which they have to' investigate and to explain the law applicable to the case, and this particularly when he is not called upon by counsel to give a more full charge.” The construction placed by these eminent Judges upon the act of 1796 (now The Code, §413) has been recognized and followed by numerous cases. The jury being the judges of the facts, the object of the recapitulation is to so place the facts before the jury that the Judge can “declare and explain the law arising thereon,” which is his province. When the facts are simple, or the Judge “directs the attention of the jury to the principal questions, they have to investigate,” as here, by stating the respective contentions of the parties, the failure to recapitulate the evidence is not error. If either party wishes fuller instructions, he should ask for them, and if any material evidence is omitted he should call it to the attention of the Court. To permit a party to ask for a new trial because of an omission of the Judge to recite all the details of prolix testimony, or for an omission to charge in every possible aspect of the case, would tend not so much to make a trial a full and fair determination of the controversy as a contest of ingenuity between counsel. The proper course is for counsel to ask, before the charge, for instructions on the points of law he deems material, and to direct the attention of the Judge, after hearing the charge, to any omission of important evidence which he *192 may have made. The appellant should present his views on these matters in apt and proper time and not “speculate upon the verdict.” If he is silent when he should si eak, he ought not to be heard when he should be silent. It is too late certainly after verdict to raise the objection that the Judge did not charge upon a particular aspect of the case. Morgan v. Lewis, 95 N. C , 296; King v. Blackwell, 96 N. C., 322; Willey v. Railroad, 96 N. C., 408, and cases there cited ; or omitted to recapitulate any part of the evidence, State v. Grady, 83 N. C, 643, and cases cited; State v. Reynolds, 87 N. C, 544. Nor do we think the Judge failed to delare and explain the law applicable to the evidence. If it was not as full as the appellant desired, it was his own fault that he did not, in apt time, ask for special instructions. State v Bailey, 100 N C., 528, and eases there cited . The second exception embraces the two different grounds, first, ■ because the Court did not charge the jury “as to what constitutes ordinary skill and ordinary care and diligence on the part of a physician and surgeon.” The case of Woodward v. Hancock, 7 Jones, 384, relied on by the appellant, is not in point, because, in the present case, the Judge did not, as in that case, leave it to the jury to determine what was “ ordinary skill,” but told them it was “ the skill which a surgeon would, under the circumstances of the case, reasonably use in treating the case,” and left the fact-! only as to what was clone by the physician to the jury. Besides, the authorities already cited are to the effect that, if fuller instruction on this point could have been given and would have been beneficial to the appellant, it was his duty to have presented his views in the form of a prayer for instructions, embodying the rule of law which he deemed applicable. Failing to do so, he cannot be heard to complain after verdict. Morgan v. Smith, 77 N. C., 38. A misinstruction or misdirection in the charge, however, can be specified and excepted to for the first time by appel *193 lant when stating his case on appeal. The v. Code, § 412 (3); Lowe v. Elliott, 107 N. C., 718. The latter part of this exception, that the Court “did not state in an: orderly manner the contention and evidence of the defendant and the law arising thereon,” we think is without merit We find nothing in the charge of which the appellant can complain. We learn from the argument that this exception was based upon what was said in State v. Boyle, 104 N. C., 800. But in that case there was a specific prayer for instruction, which is absent here, and this difference has already been pointed out in State v. Pritchett, 106 N. C., 667, and State v. Brady, 107 N. C., 822. Affirmed.