The Birmingham age-herald., 1912-11-10

ol exceptions. Experienced counsel nearly always ask the affirmative charge, whether they expect il. to be given or not. In consequenee, after the trial, it is ascertained that proof or the venue was not made, or after the bill of exceptions is signed, it ss 1eand that proof Of the venue does not appear to have been made, and, in con- sequence, the cause is reversed with cut actual merit in the reversal
 Again, some slight or immaterial variance which should be amended Is overlooked and the judge refuses the affirmative charge when it ought to be given. If such variance were point ed out at the time that the charge was requested the court could act on it in telltgently and do substantial justice knowngly, and not injustice in the dark
 Again. many times in the multiplic- fly of counts in a complaint or pleas, the court may overlook that one or more counts of the complaint or pleas have not been sustained. and. there fore, he refuses to give the affirmative charge when it would be given if the easons for the giving of the same were pointed out to him. It is no hardship upon a party ltigant to spe- eify the reasons under any eircum- stance why he thinks he is entitled to the judgment of the court upan any proposition that arises.
 Rule "B"
 'If, on the trial of a cause, a writ ten charge is moved for by either party under section 5364 of tue coda of Alabama. and such charge ought to be given but Is refused, and the re z fusal of the same is assigned as error in the appellate court, such refusal shall not work a reversal if it affirma- tlyely appears from the record that the judge, in his general charge, whether oral or written, instructed the jury substantially as moved for by the party and before the refusal called upon counsel to specify the grounds upon which the charge was requested and he fails to specify any legal reason why the charge should be given
 Reasons for Adopting Rule "B''
 This court has long recognized the doctrine of error without injury. If the party has the right to nave Ii charge given and 1t is not given, it is error without injury if the same charge is given or substantially given in the courts general charge. This court has frequently held that it is not error to refuse to give two written charges ex- pressing the same proposition of law. though the language may be different. A technical construction of 5364 would be that, no matter how many times the party requested a charge in writ ing, if in different language, the court should give it. So, while 1t is the duty of the court to give a charge if a correct proposition of law Is asserted therein, it would be error without in- l jnry if the court were to call upon counsel to specify his reasons and he fails to give any good reasons why 1t should be given, and the court should have correctly instructed the Jury in substance as requested. It Is true that charges which are given must be taken ] by the jury with them on retirement and 1t is an error for the Ncourt to re- l fuse to permit them to take the charges out on retirement and yet it could not be more than error without l Injury if the trial judge had instructed orally the jury upon that Identical point. At least. 1t certainly would be only error without injury if this court should adopt a rule of practice pro- yiding that a cause should not be re- versed unless the grounds for the giv- ing of such charge were specified, and they were good.
 Rule "C"
 "If on the trial of a cause, a writ l ten charge shall be moved for under section 5364 of the code, the court may | any grounds that he may have why such charge should not be given and | if the court, notwithstanding objec- ] tion, give such charge, the giving of the same shall not work reversal of the cause in the appellate court un- less it shall appear that the grounds l specified against the giving of such charge were we'll taken or that the l jury arrived at an erroneous verdict 1 because of the charge.
 Advantage of Rule
 'In reference to the rule e 1t is there in proposed to give the court the ben eft of opposing counsels objections to any requested charge before he is re- I quired to pass upon whether he will l give or refuse the charge. If counsel is unable to state any reason why the charge should not be given, and the court is of the opinion that it should be given, then it ought not to work q reversal of the cause if counsel sub sequently find, by search of the de- cisions of the supreme court, that the charge ought not to have been given Rules of practice are entirely reason- ahle when they are framed upon the Idea that 1t is not the nisi prius judge on trial, but the cause of action before him"