Thompson v. Barkley

The opinion of the court was delivered by Lewis, C. J. It was no part of the duty of the court to instruct the jury in regard to the alleged insufficiency of the declaration, as requested in the first and second points of the plaintiff in error. On the trial of the issue the question is not whether the declaration be good, but whether it be supported by the evidence. If the defendant below wishes to raise objections to the declaration before verdict, he must do so by demurrer. If he neglects that course he may move in arrest of judgment. In that stage of the cause many defects are cured by the verdict. In this case the declaration is perfectly good after verdict. It is not necessary to set forth the imputation of larceny with the particularity necessary in an indictment for that offence. This court will not presume that there was no evidence that the plaintiffs were husband and wife. The evidence given on the trial is not placed in the paper-book. The presumption is that it was sufficient to justify the verdict. It was not necessary to read the points to the jury. It is sufficient if the court gave the jury all the instruction which the party had a right to demand, and this we think was done. If the counsel misstate the evidence in the course of his argument, the court below may, if the purposes of justice require it, set aside the verdict and grant a new trial. Their refusal to do so is not the subject of review on a writ of error. The 5th error is abandoned. Judgment affirmed.