Aquettaz v. Chicago, Milwaukee, St. Paul & Pacific Railway Co.

I agree that ordinarily this court will not review the giving of an alleged erroneous instruction in the absence of the evidence in the case. There is, however, an exception to the rule. That exception was pointed out in State v. Mason, 24 Mont. 340, 61 Pac. 861, where the court said: “The instruction complained of is clearly erroneous, and the presumption is that it was prejudicial to the defendant. It cannot be correct under any supposed state of facts, and so is wrong in the absence of all evidence, as it would be were the evidence before us. * * * For the giving of this instruction…