McFarland v. Southern Improvement Co.

12 S.E. 452, 107 N.C. 368

• Court: Supreme Court of North Carolina
• Decided: September 5, 1890
• Status: Published

Opinion

Claek, J.:

Upon the evidence and pleadings, the defendant was entitled to have had his ninth prayer for instructions granted, if not in the very words asked, at least in substance. It appears that neither was done. The case, as settled by the Judge, says, “All the prayers for instructions were refused, except a part of the ninth, embodied in the charge given, and the defendant excepted.” It appears, therefore, that only a part of this prayer was given, and what part is not stated. As the charge is not sent up, we cannot say that the part given was the substance of the whole prayer; and it would seem that it was not, for the Judge states, in effect, that part of that prayer (and the whole of the other prayers) was refused. The exception to the refusal to give the whole prayer as asked, was notice to the appellee and to the Judge to send up the part of the charge delivered, which embodied the instruction given in that -aspect of the case. This has not been done. There is in the record no exception to the charge given, and we must assume that it was satisfactory as far as if went. This exception, however, is for an omission to charge, which would not be error unless an instruction was asked and refused, as was done here. State v. Bailey, 100 N. C., 528; McKinnon v. Morrison, 104 N. C., 354.

* Headnotes by Clark, J.

Error.