Opinion
No. 24777
Decided June 25, 1959.
Court procedure — Request charge be reduced to writing, denied — Exception to denial misunderstood — Not ground for error, when.
A defendant who excepts to the denial of his request that the court reduce its charge to writing but makes no attempt to clarify his request, although it was manifest that both his opponent and the court misunderstood his request and construed it to be a request for special instructions before argument, permits the court to fall into error and cannot later be heard to complain of the error so committed.
APPEAL: Court of Appeals for Cuyahoga County.
Mr. John T. Corrigan, prosecuting attorney, Mrs. Gertrude B. Mahon and Mr. Bernard Stuplinski, for appellee.
Mr. Albert G. Levine, for appellant.
The judgment is affirmed for the reasons that:
(1) We find the record discloses evidence of a substantial nature to support the verdict of the jury.
(2) While it is apparent on the face of the record that counsel for the defendant intended to and did make a timely request that the court reduce its charge on the law of the case to the jury to writing by virtue of the provisions of Section 2945.10 (G), Revised Code, the record shows that the prosecutor and the trial court understood the request to be for instructions to the jury on points of law before argument as permitted under Section 2945.10 (E), Revised Code, and which, in criminal cases, a trial court may grant at its discretion. When counsel for the defendant, upon the denial of his request for written instructions, excepted to the ruling of the court and made no attempt to clarify his request, although, from the state of the record, it must have been manifest to him that the prosecutor and the trial judge both misunderstood his request and construed the same to be a request seeking special instructions before argument rather than a request that the court reduce its charge to writing to be given the jury after argument, he permitted the court to fall into error and cannot now be heard to complain of the error committed.
(3) Upon a careful reading of the record, we hold that no error prejudicial to the rights of the defendant intervened in the trial of the cause, and that substantial justice has been done the party complaining. Section 2945.83, Revised Code.
Judgment affirmed.
HURD, P. J., KOVACHY and SKEEL, JJ., concur.