Practice — Trial — Objections to Evidence — Withdrawing Evidence from Consideration of Jury.
Where a motion by one party to have certain evidence introduced on his behalf stricken out was refused on the objection of the adverse party, the latter cannot assign as error the admission of such evidence.
CLARK, J.
It is settled by the uniform decisions of this Court that the trial judge "may correct a slip by withdrawing improper evidence from the consideration of the jury, or by giving such instructions as will prevent it from misleading the jury." Ruffin, J., in McAllister v. McAllister, 34 N.C. 184, cited and approved by Ashe, J., in State v. Collins, 93 N.C. 564, and Smith, C. J., in State v. McNair, 93 N.C. 628. To the same purport — State v. May, 15 N.C. 328; State v. Davis, 15 N.C. 612; Bridgers v. Dill, 97 N.C. 222; State v. Eller, 104 N.C. 853, and State v. Crane, 110 N.C. 530, where the subject is fully discussed. The purpose of a trial is the ascertainment of the (96) truth of the matter in controversy. It is not a game of skill in which the object is to catch the judge "out on first base" by an inadvertence or error, which he can and does correct himself without subjecting the parties to the expense of an appeal and a new trial. If the jury are to be deemed intelligent enough to obey his instructions in the charge, they must also be able to comprehend his instruction, that certain evidence had been improperly admitted and is not to be considered by them. If, therefore, the Court had granted the plaintiff's motion to strike out the evidence, the defendant would have had, even in that case, no ground of exception, but the condition of the defendant is worse, for it objected to the withdrawal of the evidence. It was at the defendant's instance that the evidence was submitted to the jury, and he certainly cannot complain.
No error.
Cited: Crenshaw v. Johnson, post, 277; Waters v. Waters, 125 N.C. 591; S. v. Ellsworth, 130 N.C. 691; Gattis v. Kilgo, 131 N.C. 208; Moore v. Palmer, 132 N.C. 976; S. v. Holder, 133 N.C. 712; Parrott v. R. R., 140 N.C. 548; Medlin v. Simpson, 144 N.C. 399; Bedsole v. R. R., 151 N.C. 153; Houston v. Traction Co., 155 N.C. 9; Cooper v. R. R., 163 N.C. 151; Tilghman v. R. R., 171 N.C. 662.