International & G. N. R. Co. v. Sein
Decision Date | 16 December 1895 |
Citation | 33 S.W. 215 |
Parties | INTERNATIONAL & G. N. R. CO. v. SEIN et al. |
Court | Texas Supreme Court |
J. M. Duncan and Barnard & McGown, for appellant. Wright & Summerlin and Clark & Fuller, for appellees.
The court of civil appeals for the Fourth supreme judicial district certified to this court the following statement and question:
Question: "Did the request to give the charge last copied amount to a ratification or inducement of the above copied charge of court, and is appellant prevented thereby from taking advantage of errors in the charge of the court repeated in its requested charge?"
The provisions of our law pertinent to the question submitted are as follows: Rev. St. art. 1300: "After the conclusion of the argument, the court shall read to the jury the charges and instructions, if any, under the provisions of this title relating thereto." Article 1319: "Either party may present to the judge in writing such instructions as he desires to be given to the jury, and the judge may give such instructions or a part thereof, or he may refuse to give them, as he may see proper, and he shall read to the jury such of them as he may give." Articles 1318 and 1320 provide that instructions given by the court, and those requested by either party, and refused, shall be considered as excepted to, without the necessity of taking bills of exceptions thereto.
It is the right and duty of counsel engaged in the trial of a cause to aid the court in arriving at a correct solution of the legal questions involved in the case; and, to enable them to exercise this right and to perform the duty, the law confers upon them the privilege of requesting the court to give to the jury charges embodying the law and such counsel as appears to be applicable to the facts proved. In the absence of a statute upon the subject, the attorney might make his requests for instructions either in writing or verbally. 11 Am. & Eng. Enc. Law, p. 259. Our statute requires not only that the request be in writing, but that the proposition requested to be charged shall be formulated by the counsel as an instruction, so that it may be read by the judge to the jury. It is a general rule that, when counsel has requested the court to charge a given proposition of law, and it is given, if the charge requested and given is erroneous, such error cannot be taken advantage of by the party whose counsel made the request.
The question now before the court is, in substance: If, in the course of a trial, counsel requests the court to give an instruction to the jury, which is refused, but which in whole or in part is embraced in the charge of...
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