Murphy v. State , 54 Ala. 178 ( 1875 )

BRICKELL, C. J.

The exception reserved is general, to the entire charge of the court. There are parts of the charge the correctness of which is not questioned, and yet the exception is as applicable to these as to other parts, the correctness of which is disputed. In Irwin v. State, 50 Ala. 181, and in other cases, we said: “A party excepting must make exception so specific that the matter relied on as error will be apparent to his adversary, and to the primary court; for his adversary, having his attention directed to the special matter relied on as erroneous, has the right and privilege of waiving such matter, rather than, by insisting on it, incur the hazard and delay of an appeal to a superior tribunal. The court, having its attention specially directed to the erroneous matter, might be satisfied of the error into which it may have fallen through inadvertence, and could voluntarily correct it by a reversal of its rulings, and thus protect the party excepting from injury.” The exception presents no matter for revision except tbe correctness of tbe charge as a whole. If it is correct in part, and erroneous in part, the exception can not prevail — it can not be sustained in part, and overruled in part.

Apart from this consideration, -the charge, as a whole, is correct, and is not abstract. There was evidence proper to be submitted to the jury, having a tendency to show the hog was hilled with the intent to steal it, and that the accused was connected with the entire offense, and not merely with the removal of the carcass after the hilling. In this aspect of the case, the charge is certainly free from error. It was supposed the weight of the evidence was against this hypothesis, connecting the accused with the removal of the carcass only, and that such removal did not constitute the offense punishable as grand larceny by the statute. A charge adapted to that phase of the case, and presenting that question, should have been requested. The question is not presented by the charge to which an exception was taken.

The record purports to set out the oath administered to the jury, and an essential part of the oath prescribed by the statute, to-wit: “A true verdict to render according to the evidence,” seems to have been omitted. This compels a reversal of the j'udgment of conviction.

The judgment is reversed, and the' cause is remanded. The prisoner must remain in custody until discharged by due course of law.