On Motion for Rehearing.
Counsel for appellant have filed an able and elaborate argument in connection with the motion for a rehearing, in which it is insisted that the amendatory act discussed in the original opinion does not justify a refusal on the part of the court to consider the two assignments of error. In view of the fact that this decision involves an important rule of practice, we have again considered the questions presented, and shall undertake to state more comprehensively the reasons upon which our ruling is predicated.
We have here practically two questions: (1) Is it necessary, under the act of 1913, in order to have an objection to .the main charge of the court considered on appeal, for the complaining party to show by a bill of exception, or by some form of certificate signed by the trial judge, that the particular objection urged on appeal was presented in the court below before the charge was read to the jury? (2) Is it necessary, in order to have the refusal of a special charge considered on appeal, that the complaining party show by a bill of exception that the particular charge was requested and refused, and that this action of the court was excepted to at the time? We shall consider these questions in the order in which they are stated.
[1] As is well known, before the adoption of this amendatory act of 1913 the trial judge was not required to submit his general charge to the parties or their attorneys for their inspection, nor was he required to read his charge to the jury till after the arguments were concluded. There was no necessity for the parties or their attorneys to except, either to the general charge or to the giving or refusing of special charges, in order to enable them to urge objections and exceptions on appeal. Neither was it required that the charges themselves be incorporated in bills of exception in order to become parts of the record on appeal and subject to review. The purpose of the amendatory act of 1913 was to change this practice in some important respects. For instance, it requires that the general charge, after being prepared, shall be submitted to the parties, or their attorneys, for inspection, and a reasonable time given them in which to examine it and present objections thereto. The objections must in every instance, however, be presented to the court before the charge is read to the jury, and all objections not so presented shall be considered as having been waived. The charge must then be read to the jury 'before the arguments are made. Under the old practice charges were considered as excepted to for all purposes, and might be reviewed with reference to any objection presented for the first time on appeal. It was evidently the purpose of this amendment to so modify that practice as to restrict the appellate courts to the consideration of the particular objections to the charge which had been called to the attention of the trial judge at a time when he had it in his power to correct mistakes, without the necessity of granting a new trial. Under the old practice he was not required to consider and rule on objections to the general charge before it was read to the jury. Such objections were called to his attention for the first time in the motion for a new trial. They might also be omitted from that motion, and still be available on appeal. Under the new statute, or the amendment to the old, when an objection to the charge is called to the attention of the trial judge before he delivers his instructions to the jury, he is required to make a ruling. He must either sustain the objection in whole or in part, and modify his charge accordingly, or he must overrule the objection, and read his charge to the jury as prepared, notwithstanding such objection. It is this ruling which the appellate court is to review, and which, like rulings on the admission and exclusion of testimony, must be considered with reference to the particular objections urged at the time. No other objection, however tenable, can be now considered, if the statute is obeyed. The question then is: Can this ruling be revised without a bill of exception or some certificate from the trial judge showing the nature of the objection, and that it was presented within the time required by the statute? Article 2058 says that “either party dissatisfied with any ruling, opinion, or other action of the court, must except thereto at the time same is made, or announced, and at his request time shall be given to embody such exception in a written bill.” When we consider in the same connection article 2061 as amended and appearing in the same chapter, there would be little room for the contention that a bill of exceptions in the ordinary form could be dispensed with. The uncertainty upon this question grows out of the language of article 1972, which is not amended by the new act. That article is as follows: “Such charge shall be filed by the clerk and shall constitute a part of the record in the cause, and shall be regarded as excepted to and subject to revision for er*46rors therein without the necessity of taking any bill of exception thereto.” The legal effect of this language is to make the general charge a part of the record on appeal, without being incorporated in a bill of exception. To say that it thereby becomes subject to revision for any errors urged for the first time on appeal, or in the motion for a new trial, is to annul a material provision of the new act which says that all objection not presented to the trial judge before the charge is read to the jury shall be considered as waived. How, then, shall the appellate court be advised of the ruling on the objection presented, or that any such ruling was in fact made, if not by a bill of exception or some form of certificate by the trial judge? Such a ruling does not otherwise appear of record, and, unless presented in some authentic manner, cannot be considered. In the case, before us counsel for appellant, recognizing the necessity for showing that an objection was made to the charge, have incorporated in the transcript a statement' to that effect. This statement is not only without the signature of the trial judge, but fails to allege that the objection here urged was presented to the trial judge as required by the new act. The language of the statement may be literally true, and yet the objection might be one which the statute says shall be considered ds waived. But, even if the statement were as full and as specific as is necessary to show that the objection is one which should be considered on appeal, it would be anomalous to hold that such an instrument becomes an authentic record. There is as much reason for saying the same method would be sufficient in making up the record as to' rulings on the admission or the exclusion of testimony, or to show any other rulings not appearing of record, as to say it is all that is necessary in this instance. Whatever conflict there may be between the provisions of the new act and article 1972 must be settled by giving effect to the later statute. While repeals by implication are not favored, forbearance is not indulged when it becomes necessary to carry into effect the evident purpose of the Legislature as expressed in an act inconsistent with some previous law. When both cannot stand, courts do not differ as to which must yield.
[2] Passing to the consideration of the second question, we think it clear that, in order to have the ruling of the court in refusing to give a special charge reviewed on appeal, an exception must be reserved by a bill in conformity with the provisions of chapter 19. It will be noticed that in amending article 1973 the Legislature simply dropped from the original article the words “without the necessity of taking ' any bill of exception thereto.” That portion of this article which is retained is as follows: “When the instructions asked, or some of them, are refused, the judge shall note distinctly which of them he gives and which he refuses, and shall subscribe his name thereto, and such instruction shall be filed with the clerk and shall constitute a part of the record of the cause subject to revision for error.” The failure to retain the words “without the necessity of taking any bill of exception thereto” shows an evident purpose on the part of the Legislature to repeal that provision-That intention is made clearer still when we-consider article 2061 as amended.
Our conclusion is that we cannot consider either the objection to the main charge of the' court or his refusal to give the special charge referred to in the second assignment.
Counsel for appellee has intimated a willingness for us to waive any legal objection to the lack of formality in presenting the basis of the first assignment of error- — that relating to the main charge of the court. We do not now regard this as a matter resting in our discretion. Nowhere are we advised that this objection to the charge was presented as required by the statute, and it is distinctly enacted that all such objections not so presented shall be considered as waived. That, means they shall not be considered on appeal as grounds for reversing a judgment. This statute was enacted as a reform measure, designed to prevent unnecessary reversals. We feel it our duty to observe the spirit of the law and confine our deliberations to those errors which are. presented in accordance with its requirements..
Justice LEVY concurs in what is here said,, and withdraws his dissent.The motion is overruled.