¶1(dissenting).
¶2I find myself unable to agree to a reversal because of the error in the charge quoted in the majority opinion. It strikes me that the last sentence quoted should be construed in the light of the previous sentences in which the court said:
“In considering the evidence in this case you will consider what evidence corroborates other evidence, and you may ask what corroboration there is of the testimony of … [complaining wit*456ness] that she was raped. You will ask yourselves what evidence there is by way of corroboration of defendant’s alibi.”
¶3It was in the light of these suggestions that the last sentence, on which the reversal hinges, was given as follows:
“… That brings you to the question of whether Mrs. Wilson, the defendant’s wife, was mistaken or whether … [the complaining witness] was wrong.”
¶4The whole charge should be construed together, and, if so construed it is not prejudicial to defendant, there should not be a reversal for error. State v. Murphy, 181 Minn. 303, 232 N. W. 335, 71 A. L. R. 66; State v. Zempel, 103 Minn. 428, 115 N. W. 275 (rape); State v. Newman, 93 Minn. 393, 101 N. W. 499 (statutory rape). Where the charge, as a whole, clearly submitted all the evidence to the jury for determination, there should not be a reversal. State v. Winberg, 196 Minn. 135, 264 N. W. 578. In the case at bar, the court in its charge carefully submitted to the jury all the questions of fact for determination. After the statement complained of by the majority and in its final submission, the court said:
“You will now take this case and put aside all sympathy or prejudice and determine where the truth lies. Is the defendant guilty as charged in the information or is he innocent? Remembering all of the rules of law I have endeavored to discuss with you, you will return a verdict which is just and fair according to the evidence and the law.”
¶5At the close of the charge, defendant excepted to the charge in the following language:
“Mr. Dosland: The defendant excepts to the instructions as given to the jury and particularly to the comment on the complaining witness’ ability to see the face of the man who -attacked her; and further on the comment that the defense of an alibi is easy to present and difficult to disprove and further upon the fact that … [complaining witness] made a complaint. The defendant *457further excepts to the various comments upon the evidence in the case.
“The Court: Of course, the last doesn’t mean anything.
“Mr. Thysell: No. It is very general.
“The Court: The rest of the exceptions have no merit.
“Mr. Dosland: We also take exception to the statement of the Court that the defense of alibi should be scrutinized with extreme care.
“The Court: The supreme court has held that in several cases in this state.
“Mr. Dosland: I believe that is true, your Honor. I believe I have checked it heretofore.”
¶6How little merit there was in these exceptions is illustrated by what the court charged about identification by the complaining witness. It said:
“What opportunity did … [the complaining witness] have to observe the face of the man who drove the car in question? What occasion did she have to remember that face? What was her conduct and method of identification in the jail? You have heard her testimony and the testimony of the sheriff, Mr. Curran, in that respect, and you will remember that you are to be governed by the actual evidence and not by any inadvertent statements as to what the evidence is unless such statements are borne out by the actual, evidence in the case.”
¶7No exception was taken or challenge made to the correctness of that part of the charge upon which the majority hinges the reversal until the motion for new trial, and that does not raise the question of error as to any fundamental question of law. The charge merely submitted to the jury the question of which of two diametrically opposed witnesses was in error. The issue in the case had simmered down to the testimony in support of identification against that in support of an alibi.
¶8As to alibi, the court in its charge included a statement as to the rigid scrutiny to be applied to all the evidence in the case. It said:
*458“… The defense [of alibi] is easily claimed and hard to disprove. It is for you to determine what weight is to be given to that evidence, and you will consider all of the evidence with caution and subject it to rigid scrutiny. That rule applies to all of the evidence in the case. If the evidence with reference to an alibi raises a reasonable doubt in your minds as to the guilt of the defendant, then your verdict will be not guilty, the defendant being entitled to the benefit of any reasonable doubt. If you find such evidence entitled to no weight or credit, then you will, of course, treat it accordingly.” (Italics supplied.)
¶9Taking the charge as a whole, it appears to be a fair and impartial submission of the issues. State v. Brown, 41 Minn. 319, 43 N. W. 69.
¶10I think there should be an affirmance.
¶11(dissenting).
¶12It seems to me that the instruction upon which the majority relies in granting a new trial could have been misleading to the jury if they took it to be a concise summing up of the issues they were to decide. Obviously it was incomplete and insufficient for that purpose. Whether it could reasonably have been interpreted by the jury to be such a summing up would depend upon the manner in which it was given and the emphasis placed upon it by the trial court. Neither of these matters, in my opinion, can be determined from the bare words upon the cold record before us.
¶13The failure of defendant’s experienced counsel to object to this part of the trial court’s instructions at the conclusion of the charge indicates to me that it was not given in a manner which made it likely to mislead the jury. Defendant’s counsel were alert to note statements in the charge which they found objectionable, and they took exception to certain parts of the charge before the jury retired. They did not, however, call the court’s attention to any error in respect to the instruction in question until the motion for a new trial.
¶14Errors in jury instructions as to controlling propositions of law may be called to the attention of the trial court for the first time in *459a notice of motion for a new trial, but inadvertent errors or omissions must be called to the court’s attention before the jury has retired. Steinbauer v. Stone, 85 Minn. 274, 88 N. W. 754; MacIllravie v. St. Barnabas Hospital, 231 Minn. 384, 43 N. W. (2d) 221. M. S. A. 547.03, subd. 2, was not intended to obviate the necessity of seasonably calling the court’s attention to inadvertent omissions or errors in the charge but merely to eliminate the need for taking an exception where the court has acted adversely after its attention has been directed to the alleged error. Storey v. Weinberg, 226 Minn. 48, 31 N. W. (2d) 912; Foster v. Bock, 229 Minn. 428, 39 N. W. (2d) 862; Chapman v. Dorsey, 235 Minn. 25, 49 N. W. (2d) 4. The rule of Steinbauer v. Stone, supra, still stands. MacIllravie v. St. Barnabas Hospital, supra. It is applicable to criminal as well as civil cases. State v. Kaufman, 172 Minn. 139, 214 N. W. 785; State v. Farmer, 179 Minn. 516, 229 N. W. 789; 5 Dunnell, Dig. (3 ed.) § 2479a.
¶15If the trial court’s emphasis or manner of giving that part of the charge complained of was misleading to the jury, it is precisely the type of inadvertent error to which the foregoing rule is applicable because, had it been seasonably called to the court’s attention, it undoubtedly would have been corrected before the jury retired.
¶16For these reasons I respectfully dissent.