State v. Johnson.

• Court: New Mexico Supreme Court
• Writing for the Court: ROBERTS, C. J.
• Citation: State v. Johnson, 21 N.M. 432, 155 P. 721, 1916 NMSC 11 (N.M. 1916)
• Decision Date: 21 February 1916
• Docket Number: No. 1829.,1829.
• Parties: STATEv.JOHNSON.

21 N.M. 432

155 P. 721

STATE

v.JOHNSON.

No. 1829.

Supreme Court of New Mexico.

Feb. 21, 1916.

Syllabus by the Court.

While, under the statute, it is the duty of the court to instruct the jury in writing, unless written instructions are waived by both parties, entered on the record, yet where a party fails to object to the action of the court in instructing the jury orally until after verdict by the jury his objection comes too late.

Appeal from District Court, Grant County; Colin Neblet, Judge.

Albert Johnson was convicted of larceny, and appeals. Affirmed.

An objection, first made by accused after verdict, to the action of the court in instructing orally comes too late.

G. L. Reese, of Portales, for appellant.

H. S. Bowman, Asst. Atty. Gen., for the State.

ROBERTS, C. J.

This is an appeal from a judgment of the district court of Grant county, sentencing appellant to serve a term in the state penitentiary, which said judgment was based upon the verdict of a jury finding appellant guilty of the larceny of a bay mare, the property of one Edward Dickinson. Appellant relies upon two alleged errors for a reversal: First, that the court erred in instructing the jury orally as to the law of the case; and, second, that there is no substantial evidence warranting the verdict.

From the transcript it appears that no objection was interposed by appellant to the action of the court in giving oral instructions to the jury, which said instructions were taken down by the court stenographer. After the verdict of the jury was returned, appellant filed written exceptions to the action of the court in instructing the jury orally. He was too late with his objections. It was his duty to object to the oral instructions at the time they were delivered to the jury, and, had he done so, doubtless the court would have reduced them to writing, and thus the alleged error would have been avoided. Exceptions not having been taken to the giving of oral instructions at the time they were given, appellant loses his right to object, for, as we said in State v. Eaker, 17 N. M. 479, 131 Pac. 489:

“Courts are not infallible, and it is the duty of attorneys to call attention to errors at the time of their commission, so that they may be corrected.”

This court has repeatedly held that the correctness of instructions given by the trial court will not be reviewed on appeal, unless exceptions are saved and an opportunity for correction given. State v. Padilla, 18 N. M. 573, 139 Pac. 143; State v. Eaker, 17 N. M. 479, 131 Pac. 489; State v. Lucero, 17 N. M. 484, 131 Pac. 491; United States v. Cook, 15 N. M. 124, 103 Pac. 305; ...