State v. Hall

¶1Concurring in Conclusion. — I concur in affirming the judgment in this ease, but cannot agree entirely in the holding of the majority in what is said with reference to the presumptions that follow the giving of instructions by the trial court. If an instruction given by the trial court is contrary to law and could not be applicable to any state of facts, it is the duty of the appellate court to say so; and if the instruction was on a matter that was at all likely to be prejudicial to the defendant, the judgment should be reversed. So also if an instruction was requested which correctly stated the law on a material issue involved in the case, and the same was not covered by any instruction given by the court, it would be error for the court to refuse it, and *112the appellate court should reverse the judgment. These questions can be determined as well without the evidence being in the record as with it. But in all such cases, it is the duty of this court to consider instructions given and those refused, and determine whether or not the giving or refusing of the particular instruction could have been prejudicial to the defendant. There is, on the other hand, a class of instructions with which this court has dealt on several occasions which have reference to the special facts and circumstances of the particular ease. In such cases, the instruction given or refused would not be necessary or even proper in all cases, but is applicable only to the peculiar facts and circumstances of the given ease. In that class of cases, the appellate court cannot determine whether or not there was error, unless the evidence is brought up on appeal.