Sulser v. Sayre

58 So. 758, 4 Ala. App. 452, 1912 Ala. App. LEXIS 335

• Court: Alabama Court of Appeals
• Decided: May 9, 1912
• Status: Published

Opinion

WALKER, P. J.

It is not- made to appear that there was any abuse by the court of its discretion in permitting the jury to repair to an adjacent lot for the purpose of inspecting the mule in the sale of which the defendant was alleged to have practiced deceit, especially in view of the fact that ihe defendant had testified as to the condition of the mule on the day before the trial. — Jones on Evidence, § 399; 38 Cyc. 1313.

Following the statement that “the court charges the jury as follows” the bill of exceptions sets out four numbered paragraphs, which are supposed to embrace the whole or parts of the court’s oral charge to the jury. This quotation is followed by the statement that “the giving of the above charge was duly excepted to by the defendant.” Whether this exception is construed as referring to the whole of what is set out as the court’s charge to the jury, or only to the last-numbered paragraph of the charge, it cannot he sustained. In the course of the charge a number of propositions are stated, as to the correctness of which no question is made, or could with any plausibility he made. An exception to a charge as a whole is unavailing, if it embodies any separate proposition which is free from error.—Sims v. State, 146 Ala. 109, 41 South. 413. It is not claimed in argument that the court erred in any statement contained in the last numbered paragraph of the charge. There was no separate exception to the part of the charge to which the appellant now imputes error. For the reasons suggested, the single exception reserved by the defendant to the charge of the court is unavailing to present for review the part of the charge of which complaint now is made.

Affirmed.