State v. Lambe
| Decision Date | 01 November 1950 |
| Docket Number | No. 362,362 |
| Citation | 232 N.C. 570,61 S.E.2d 608 |
| Court | North Carolina Supreme Court |
| Parties | STATE, v. LAMBE. |
Harry McMullan, Atty. Gen., and Ralph Moody, Asst. Atty. Gen., for the State, appellee.
P. S. Carlton, Salisbury, for defendant, appellant.
The first, second, and third exceptions relate to the denial of motions for compulsory nonsuits under G.S. § 15-173. Appellant has expressly abandoned these exceptions. Such action is well advised; for there was plenary evidence at the trial to carry the cases to the jury, and support the verdicts for the State.
The fourth and fifth exceptions question the validity of lengthy portions of the charge. They were noted for the first time in the case on appeal on the theory that the judge expressed opinions on facts in these parts of the charge in violation of the statute embodied in G.S. § 1-180. This position is not well taken. The specified portions of the charge constitute mere statements by the judge of contentions of the parties arising upon evidence. This being true, the fourth and fifth exceptions are without value to appellant, for the reasons stated below.
Under the appellate practice which obtains in this jurisdiction, it is not incumbent upon a litigant to except at the trial to errors in the instructions of the judge as to applicable law, or in the instructions of the judge as to the contentions of the parties with respect to such law. It is sufficient if he sets out his exceptions to errors in such instructions for the first time in his case on appeal. G.S. §§ 1-206, 1-282; State v. Johnson, 227 N.C. 587, 42 S.E.2d 685; Cherry v. Atlantic Coast Line R. Co., 186 N.C. 263, 119 S.E. 361. The rule is otherwise, however, where the judge misstates the evidence, or the contentions of the parties arising on the evidence. When that occurs, the litigant must call the attention of the judge to the misstatement at the time it is made, and thus afford the judge an opportunity to correct it before the case is given to the jury. Furthermore, he must note an immediate exception to the ruling of the judge in case his request for the correction of the misstatement is refused. If this course is not pursued, the misstatement of the evidence or of the contentions based thereon is not subject to attack on review on appeal. State v. Thompson, 226 N.C. 651, 39 S.E.2d 823; State v. McNair, 226 N.C. 462, 38 S.E.2d 514; State v. Shoup, 226 N.C. 69, 36 S.E.2d 697; State v. Rising, 223 N.C. 747, 28 S.E.2d 221.
The sixth exception is a general exception to a lengthy portion of the charge relating to case 60, and containing a number of propositions, including the following: 'If the State has failed to satisfy you from the evidence beyond a reasonable doubt that the defendant unlawfully assaulted Mrs. Lambe, it would be your duty to return a verdict of not guilty.' This exception falls under the condemnation of the necessary rule of appellate practice that an exception must...
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Wilson v. Commercial Finance Co., 749
...Moreover, the exception to its statement was noted for the first time in the case on appeal. Powell v. Daniel, supra; State v. Lambe, 232 N.C. 570, 61 S.E.2d 608. Since no error in matter of law or legal inference appears, the judgment will be No error. ...
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Powell v. Daniel
...to a portion of a charge embracing a number of propositions is insufficient if any of the propositions are correct. State v. Lambe, 232 N.C. 570, 61 S.E.2d 608; Arnold v. State Bank & Trust Co., 218 N.C. 433, 11 S.E.2d 307 Rawls v. Lupton, 193 N.C. 428, 137 S.E. 175; Lanier v. Pullman Co., ......
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State v. Birchfield, 3
...the judge at the time they were made, and afford him an opportunity to correct them before the case was given to the jury. State v. Lambe, 232 N.C. 570, 61 S.E.2d 608. The proceedings in the superior court will be upheld, for there is in No error. ...
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State v. Benton
...need not be entered at the trial and may be taken within the time allowed for the preparation of the case on appeal. State v. Lambe, 232 N.C. 570, 61 S.E.2d 608 (1950). Nevertheless, assignments of error relating to the charge and not predicated upon exceptions in the record set out as requ......