*.. V /rP Gtornrll 21am ^rlyonl IGibrarg Cornell University Library KF8984.B64 1916 v.1 Blashf ield's instructions to juries, civ 3 1924 020 115 386 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020115386 BLASHFIELD'S INSTRUCTIONS TO JURIES CIVIL AND CRIMINAL CASES INCLUDING TRIAL PRACTICE RELATING TO INSTRUCTIONS AND FORMS OF APPROVED INSTRUCTIONS ON ALL BRANCHES OF THE LAW SECOND EDITION By The Publishers' Editorial Staff IN THREE VOLUMES VOLUME I CHICAGO CALLAGHAN AND COMPANY . 1916 COPYRIGHT 1916 BY CALLAGHAN & COMPANY PREFACE TO SECOND EDITION The first edition of this work was published in 1902. Its success is probably best evidenced by the fact that so many reprints were necessary that the original plates have long been worn out." The Law of Instructions, while not a changing subject of juris- prudence, is a constantly developing branch, for the reason that the instructions given by the court to the jury most" frequently are the means through which existing principles of law, as applied to changing conditions following the progress of civilization, are pre- sented to the reviewing courts, thus becoming part of the great body of common-law. The purpose of the present. eSition is to trace the various develop- ments in the Law of Instructions down to the present time. The original work has been largely rewritten and improved. Over a hundred new chapters have been added. While the rules governing instructions contained in the first volume are of the greatest value in framing correct instructions and in detecting error in those given for the adverse party, prob- ably the most valuable feature for the practical, busy lawyer is the complete collection of forms. These are grouped under appro- priate heads, which are arranged alphabetically, the forms under the various chapters being preceded by a copious index to each chapter as well as being thoroughly indexed in the general index appearing in the third volume. These forms cover practically all branches of the law, including such new features as Automobiles, the Federal Employers' Liability Act, and the "Workmen's Com- pensation Acts. The collection of forms upon the various branches of Criminal Law is especially complete. The advisability of using instructions which have received judi- cial sanction has been repeated over and over by the courts, for the reason, as was said by the Court in Minich v. People, 8 Colo. 440, that it is "the safe practice and obviates the necessity of a consideration of instructions on the subject differently worded." To the same effect is State v. Allen, 34 Mont. 403, where the court says: "It is far safer for the trial court to make use of instruc- tions generally approved by the courts, rather than to risk the danger of invading the province of the jury by formulating new ones." On the other hand the practice of framing instructions from the iii iv Pbbface to Second Edition. language of judicial opinions and text books, has met with constant condemnation. "It is not always safe," says the Missouri Supreme Court, "to take an excerpt from an opinion and embody it in an instruction, because the opinion is addressed to lawyers, while the instruction is addressed to laymen. ' ' Magrane v. St. Louis & S. R. Co., 183 Mo. 119. Similarly the Supreme Court of Alabama says: "It often happens that judges in writing opinions, and authors of legal text-books in discussing or denning propositions of law, express themselves in language wholly unsuited for the purpose of instructions to juries. " McGee v. State, 117 Ala. 229. To the same effect are Meighan v. Birmingham Terminal Co., 165 Ala. 591 j Birmingham By. Light & Power Co. v. Barrett, 4 Ala. App. 347 ; Savannah F. & W. Ry. Co. v. Evans, 115 Ga. 315 ; Atlanta & W. P. R. Co. v. Hudson, 123 Ga. 108 ; Macon Ry. & Light Co. v. Vining, 123 Ga. 770 ; Shannon v. Swanson, 109 111. App. 274 ; Sciurba v. Metropolitan St. R. Co., 73 App. Div. (N. Y.) 170. These references merely serve to emphasize the value of the collection of some 12,000 approved forms which appear in this edition. In presenting the work to the profession, the publishers feel con- fident that it will invoke the same response as that received by the earlier edition. CALLAGHAN AND COMPANY. March, 1916. PREFACE TO FIRST EDITION The subject of instructions to juries has heretofore received but meager attention, although it is one of the most important phases of a trial. The subject is essentially a practical one, and an attempt has been made in this work to treat it in the most practical manner. It is believed that the profession will prefer well-approved prece- dents, rather than deductions of the author. Therefore, discussion of theories has been avoided, save those which have received the commendations of the courts; and that the atmosphere of the court room may be more nearly approached, the exact words of the judges are set forth whenever practicable. Special attention is called to the chapters on the practice in criminal prosecutions, particularly those dealing with cautionary instructions upon "alibi" and "reasonable doubt." The history of the doctrine that the jury may judge both law and fact in crim- inal cases is exhaustively treated, and the statutory limitations placed upon the judge's power to comment on the evidence are fully worked out. In connection with every rule or principle stated, exhaustive cita- tions of forms are given. This method has resulted in enormous saving of space for the almost endless and useless repetition of merely formal parts of instructions, and restatement of perfectly familiar propositions of substantive law have thus been avoided. By no other means could the same number of forms be included in a single volume. DE WITT C. BLASHPIBLD. June 27, 1902. TABLE OF CONTENTS VOLUME I Pages. Chapter I. Definitions and Distinctions 1-3 Chapteb II. Necessity and Office of Instructions 4-8 Chapter III. Necessity or Propriety of Definition by Court of Terms Used, and Correctness of Such Definition 9-22 Chapter IV. General Requisites 23-49 Chapter V. Form of Instructions 50-77 Chapter VI. Necessity of Instructing in Writing 78-110 Chapter VII. Province of Court and Jury 111-168 Chapter VIII. Eelation of Instructions to Pleadings and Evidence 169-205 Chapter IX. Stating Issues to Jury 206-218 Chapter X. Ignoring Evidence, Issues, Theories, and Defenses 219-232 Chapter XI. Assumption of Facts and Instructions 233-269 Chapter XII. Charging with Respect to Matters of Fact, or Comment- ing on Weight of Evidence 270-319 vii viii Contents. Pages. Chapter XIII. Summing up the Evidence : 320-334 Chapter XIV. Giving Undue Prominence to Evidence, Issues, and . Theories 335-354 Chapter XV. Requests for Instructions 355-466 Chapter XVI. Construction and Interpretation of Instructions 467-488 Chapter XVII. Signing and Numbering Instructions 489-491 Chapter XVIII. Presentation of Instructions to and Consideration by Jury 492-505 Chapter XIX. Additional Instructions After Retirement of Jury 506-528 Chapter XX. Withdrawal or Modification of Instructions. 529-533 Chapter XXI. Instructions as to Duty of Jurors to Agree Upon Verdict 534-542 Chapter XXII. Instructions as to Verdict ; Special Verdict or Findings, and Interrogatories 543-546 Chapter XXIII. Issues out of Chancery 547-549 Chapter XXIV. Instructions Permitting Jurors to Use Personal Knowl- edge as Evidence 550-554 Chapter XXV. Cautionary Instructions in General • 555-574 Chapter XXVI. Instructions on Presumptions of Law of Pact; Burden or Proof and Degree of Proof 575-641 Chapter XXVII. Instructions on Reasonable Doubt 642-695 Contents. ix , Pages. Chapter XXVIII. Instructions as to Defense of Alibi 696-720 Chapter XXIX. Intructions on Absence of Allowable Evidence 721-735 Chapter XXX. Instructions on the Credibility of Witnesses and the Pro- bative Force of Evidence 736-863 Chapter XXXI. Instructions as to Circumstantial Evidence 864-893 Chapter XXXII. . Instructions as to Criminal Offenses and Punishment. . . 894-906 Chapter XXXIII. Cure of Error 907-923 Chapter XXXIV. Exceptions and Objections to Instructions and Review on Appeal 924-1007 Chapter XXXV. Abduction 1009-1014 Chapter XXXVI. Abortion 1015-1020 Chapter XXXVII. Accord and Satisfaction 1021-1026 Chapter XXXVIII. Account, Action on 1027-1028 Chapter XXXIX. Account Stated 1029-1034 Chapter XL. Acknowledgment 1035 Chapter XLI. Act of God 1036 Chapter XLII. Adjoining Landowners 1037-1041 Chapter XLIII. Adultery 1042-1046 x Contents. Pages. Chapter XLIV. Adverse Possession 1047-1082 Chapter XLV. Affidavits 1083 Chapter XLVI. Agency 1084-1109 Chapter XLVII. Agriculture 1110 Chapter XLVIII. Alteration of Instruments 1111-1117 Chapter XLIX. Animals 1118-1133 Chapter L. Apprentices 1134 Chapter LI. Arbitration and Award 1135-1136 Chapter LII. Architects 1137-1139 Chapter LIII. Arrest 1140-1141 Chapter LIV. Arson 1142-1145 Chapter LV. Assault and Battery 1146-1181 Chapter LVI. Assignments for Benefit of Creditors 1182-1191 Chapter LVII. Assumpsit 1192-1193 Chapter LVIII. Attachment 1194-1205 Chapter LIX. Attorney and Client ,. 1206-1223 Chapter LX. Automobiles 1224-1234 Contents. xi Pages. Chapter LXI. Bail 1235 Chapter LXII. Bailment 1236-1249 Chapter LXIII. Bankruptcy , '. 1250 Chapter LXIV. Banks and Banking 1251-1268 Chapter LXV. Bastards 1269-1273 Chapter LXVI. Bigamy 1274-1277 Chapter LXVII. Bills and Notes 1278-1313 Chapter LXVIII. Boards of Trade , 1314 Chapter LXIX. Bonds 1315-1316 Chapter LXX. Boundaries 1317-1329 Chapter LXXI. Breach of Marriage Promise 1330-1345 Chapter LXXII. Breach of the Peace 1346-1347 Chapter LXXIII. Bribery 1348 Chapter LXXIV. Bridges 1349-1363 Chapter LXXV. Brokers 1364-1399 Chapter LXXVI. Building and Construction Contracts 1400-1426 Chapter LXXVII. Building and Loan Associations 1427-1432 xii Contents. pQgypg Chapter LXXVIII. Burglary 1433-1455 Chapter LXXIX. Cancellation of Instruments , 1456-1458 VOLUME II Chapter LXXX. Carriers 1459-1724 Chapter LXXXI. Cautionary Instructions 1725-1761 Chapter LXXXII. Charities 1762 Chapter LXXXIII. Chattel Mortgages 1763-1772 Chapter LXXXIV. Civil Rights 1773 Chapter LXXXV. Compromise and Settlement .1774-1779 Chapter LXXXVI. Concealing Birth 1780-1781 Chapter LXXXVII. Conspiracy 1782-1791 Chapter LXXXVIII. Continuance . . . / 1792 Chapter LXXXIX. Contracts 1793-1829 ( Chapter XC. Convicts 1830 Chapter XCI. Corporations 1831-1841 Chapter XCII. Counties 1842-1843 Contents. xiii Pages. Chapter XCIII. Covenants 1844-1845 Chapter XCIV. Criminal Law 1 : 1846-1999 Chapter XCV. Crops 2000-2001 Chapter XCVI. Customs and Usages 2002-2003 Chapter XCVII. Damages 2004-2071 Chapter XCVIII. Dead Bodies 2072-2073 Chapter XCIX. Death by Wrongful Act 2074-2111 Chapter C. Dedication 2112-2116 Chapter CI. Deeds 2117-2129 Chapter CII. Dentists 2130 Chapter CIII. Depositaries 2131-2133 Chapter CIV. Depositions v 2134 Chapter CV. Detinue 2135-2136 Chapter CVI. Disorderly Conduct 2137 Chapter CVII. Disorderly House 2138-2143 Chapter CVIII. Disturbance of Public Assemblage 2144-2145 Chapter CIX. Divorce , 2146-2147 xiv Contents. Pages. Chapter CX. Dower -. - 2148 Chapter CXI. Drains 2149 Chapter CXII. Druggists 2150-2152 Chapter CXIII. Drunkards 2153-2154 Chapter CXIV. Duress 2155-2156 Chapter CXV. Ejectment „ 2157-2168 Chapter CXVI. Elections '. 2169-2171 Chapter CXVII. Electricity 2172-2181 Chapter CXVIII. Embezzlement 2182-2199 Chapter CXIX. Eminent Domain 2200-2225 Chapter CXX. Estates of Decedents ./. 2226-2235 Chapter CXXI. Estoppel 2236-2238 Chapter CXXII. Evidence 2239-2263 Chapter CXXIII. Exchange of Property t . 2264-2265 Chapter CXXIV. Execution 2266-2267 Chapter CXXV. Exemptions 2268-2270 Chapter CXXVI. Explosives 2271-2273 Contents. xv Pages. Chapter CXXVII. Extortion 2274 Chapter CXXVIII. Factors 2275-2285 Chapter CXXIX. False Imprisonment ' 2286-2296 Chapter CXXX. False Personation 2297 Chapter CXXXI. False Pretenses 2298-2307 Chapter CXXX1T. Federal Employers' Liability Act 2308-2354 Chapter CXXXIII. Fences 2355-2357 Chapter CXXXIV. Ferries 2358 Chapter CXXXV. Fidelity Bonds 2359-2362 Chapter CXXXVI.' Fixtures : 2363 Chapter CXXXVII. Forcible Entry and Detainer 2364 Chapter CXXXVIII. Forgery 2365-2376 Chapter CXXXIX. Fornication 2377 Chapter CXL. Fraud .2378-2395 Chapter CXLI. Frauds, Statute of 2396-2399 Chapter CXLII. Fraudulent Conveyances 2400-2432 Chapter CXLIII. Gaming 2433-2444 xvi Contents. Chapter CXLIV. Garnishment 2445-2448 Chapter CXLV. Gas 2449-2451 Chapter CXLVI. Gifts 2452-2454 Chapter CXLVII. Good-Will 2455-2456 Chapter CXLVIII. Guaranty , 2457-2459 Chapter CXLIX. Highways 2460-2479 Chapter CL. Homestead 2480-2481 Chapter CLI. Homicide 2482-2859 Chapter CLII. Hospitals 2860-2862 Chapter CLIII. Husband and Wife i 2863-2883 Chapter CLIV. • Incest 2884-2886 Chapter CLV. Indemnity 2887 Chapter CLVI. Infants 2888 Chapter CLVII. Injunction 2889-2890 Chapter CLVIII. Innkeepers 2891-2896 Chapter CLIX. Insane Persons 2897 Chapter CLX. Inspection 2898 Chapter CLXI. Insurance 2899-3017 Contents. xvii VOLUME III Pages. Chapter CLXII. Interurban Eailroads , 3019-3022 Chapter CLXIII. Intoxicating Liquors 3023-3083 Chapter CLXIV. Joint Adventures 3084 Chapter CLXV. Joint Stock Companies 3085 Chapter CLXVI. Judgment 3086 Chapter CLXVII. Kidnapping 3087 Chapter CLXVltl. Landlord and Tenant 3088-3119 Chapter CLXIX. Larceny 3120-3162 Chapter CLXX. Lewdness 3163-3164 Chapter CLXXI. Libel and Slander 3165-3216 Chapter CLXXII. Licenses 3217-3218 Chapter CLXXIII. Life Estates 3219-3220 Chapter CLXXIV. Limitation of Actions 3221-3227 Chapter CLXXV. Lis Pendens '. 3228 Chapter CLXXVI. -Livery Stable Keepers 3229-3231 Chapter CLXXVII. Logs and Logging 3232 xviii Contents. Pages. Chapter CLXXVIII. Lotteries 3233-3234 Chapter CLXXIX. Malicious Mischief 3235-3236 Chapter CLXXX. Malicious Prosecution 3237-3261 Chapter CLXXXI. Marriage 3262-3263 Chapter CLXXXII. Master and Servant 3264-3420 Chapter CLXXXIII. Mechanics' Liens 3421-3422 Chapter CLXXXIV. Mines and Minerals 3423-3444 Chapter CLXXXV. Municipal Corporations 3445-3525 Chapter CLXXXVI. Navigable "Waters 3526-3529 Chapter CLXXXVII. Negligence 3530-3563 Chapter CLXXXVIII. Nuisance 3564-3573 Chapter CLXXXIX. Obstructing Justice 3574 Chapter CXC. Parent and Child 3575-3577 Chapter CXCI. Partnership 3578-3586 Chapter CXCII. Paupers 3587 Chapter CXCIII. Payment 3588-3590 Chapter CXCIV. Perjury 3591-3601 Contents. xix Chapter CXCV. Physicians and Surgeons , 3602-3614 Chapter CXCVI. Pleading 3615 Chapter CXCVII. Pledges .3616-3619 Chapter CXCVIII. Policemen 3620 Chapter CXCIX. Postoffice 3621 Chapter CC. Principal and Surety 3622 Chapter GCI. Property 3623 Chapter CCII. Prostitution 3624-3625 Chapter CCIII. Public Amusements 3626-3628 Chapter CCIV. Railroads 3629-3773 Chapter CCV. Rape 3774-3813 Chapter CCVI. Receivers 3814 Chapter CCYII. Receiving Stolen Goods 3815-3818 Chapter CCVIII. Release . . . . : 3819-3820 Chapter CCIX. Religious Societies 3821-3823 Chapter CCX, Replevin 3824-3827 Chapter CCXI. Riparian Owners 3828^-3832 xx ' Contents. Chapter CCXII. Robbery .3833-3843 Chapter CCXIII. Sales 3844-3893 Chapter CCXIV. Schools 3894 Chapter CCXV. Searches and Seizures 3895 Chapter CCXVI. Seduction 3896-3924 Chapter CCXVII. Sequestration 3925 Chapter CCXVIII. Sheriffs 3926-3927 Chapter CCXIX. Shipping 3928-3931 Chapter CCXX. Street Railroads 3932-3993 Chapter. CCXXI. Subscriptions 3994-3995 Chapter CCXXII. Taxation 3996-3997 Chapter CCXXIII. Telegraphs and Telephones ". 3998-4008 ' Chapter CCXXIV. Threats '.'.' " 4009 Chapter CCXXV. Torts 4010 Chapter CCXXVI. Towage 4011-4012 Chapter CCXXVII. Trespass 4013-4017 Chapter CCXXVIII. Trespass to Try Title 4018-4019 Contents. xxi Pages. Chapter CCXXIX. Trover and Conversion 4020-4023 Chapter CCXXX. Turnpikes and Toll Roads 4024-4026 Chapter CCXXXI. Use and Occupation 4027 Chapter CCXXXII. Usury 4028-4030 Chapter CCXXXIII. Vendor and Purchaser 4031-4041 Chapter CCXXXIV. "Warehousemen 4042-4053 Chapter CCXXXV. "Waters and "Water Courses 4054-4059 Chapter CCXXXVI. "Weapons 4060-4063 Chapter CCXXXVII. "Wharves 4064 Chapter CCXXXVIII. Wills 4065-4099 Chapter CCXXXIX. "Witnesses 4100-4153 Chapter CCXL. "Workmen's Compensation Acts 4154 INSTRUCTIONS TO JURIES CHAPTER I. Definitions and Distinctions. § 1. Instructions defined. § 2. Distinctions. § 3. Equity cases — Declarations of law in cases tried without a jury. § 1. Instructions defined. Instructions have been defined to be announcements to the jury of rules of law to be applied to the facts found, 1 or directions in regard to the law of the case. 2 The definition is given more fully by the supreme court of one state which defines instructions as "directions with reference to the law of the cas"e, enabling the jury to better understand their duty and preventing them from arriving at erroneous and wrong conclusions." 3 In another state an instruction has been defined as "an exposition of the principles of the law applicable to the case, or some branch or phase of the case, which the jury are bound to apply in order to render a verdict establishing the rights of the parties . in accordance with the facts proven." 4 1 — Illinois Cent. B. Co. v. Wheeler, 3 — Hanson v. Kent & Purdy Paint 50 111. App. 205. Co., 36 Okla. 583; Butler v. Gill, 34 2 — Ellis v. People, 159 111. 337; Okla. 814; Leavitt v. Deichmann, 30 Lawler v, McPheeters, 73 Ind. 579; Okla. 423. Jenkins v. Wilmington & W. B. Co., 4 — Lehman v. Hawks, 121 Ind. 541. 110 N. C. 438. The essential idea involved in the (1) Blashfield Vol. I— 1 2 Insteuctions to Jubies. [§ 1 Statements of rules of law governing the matter in issue or the amount of recovery are instructions. 5 The instructions, taken as a whole, are frequently spoken of as the "charge to the jury," and in many instances the word ' ' charge ' ' is used as a synonym for the word ' ' instruc- tion." § 2. Distinctions. Literally, the word "instruction" may apply to any direction given to the jury by the court, 6 but the word is usually more restricted in meaning in those states where statutory requirements exist requiring instructions to be given in writing. 7 In such states an instruction is usually held to be a positive direction to the jury as to the principles of law applicable to the case on trial, 8 and not every direction or remark addressed by the court to the jury is an instruction. 9 § 3. Equity cases — Declarations of law in cases tried with- out a jury. As a general rule, where a case is submitted to the trial court without a jury, instructions count for nothing more than to show the theory on which the court proceeded, 10 and instructions have no place in equity cases, the appellate court not being bound thereby. 11 However, in a number of jurisdictions, where an action at law is tried before the court without a jury, the practice term "instruction" "is that it is 8 — See § 44, post. authoritative as an exposition of the 9 — Hinckley v. Horazdowsky, 133 law, which the jury are bound * * * 111. 359, 14 Am. Neg. Cas. 312, 8 L. to obey." Bouvier Law Diet. 310, E, A. 490n, 23 Am. St. Rep. 618; Mc- . cited with approval in Dodd ' v. Callister v. Mount, 73 Ind. 559 ; Mc- Moore, 91 Ind. 523. Cormick v. Ketehum, 48 Wis. 643. 5— Bradway v. Waddell, 95 Irid. 10— Butts v. Gunby & West, 135 170; Stanley v. Sutherland, 54 Ind. Mo. App. 28. 339. 11— Shelton v. Franklin, 224 Mo. 6— Lehman v. Hawks, 121 Ind. 541. 342, 135 Am. St. Eep. 537. 7 — See ch. VI, post, "Necessity of But see ch. XXIII, post, "Issues Instructing in Writing." out of Chancery." §3] Definitions and Distinctions. prevails of presenting to the court propositions of law which the court is requested to : declare as legal principles applicable to the facts of the case, and in accordance with which its decision is rendered. Such declarations of law are in some respects quite analogous to the instructions in jury- cases, but there are obvious differences. The object of such declarations of law is to enable the reviewing court to see upon what theory or principle the lower court based its judgment. 12 This practice does not obtain in chancery cases, because in such cases, upon appeal, the case is tried de novo upon the pleadings and proofs, and it is therefore immaterial upon what theory the lower court proceeded. 13 This subject is not regarded as being within the scope of this work, and therefore will receive no further con- sideration. 12 — See, generally, upon this sub- ject, the following cases: Illinois. Allman v. Lumsden, 159 111. 219; Christy v. Stafford, 123 111. 464; Loudon v. Mullins, 52 111. App. 410; Kraemer v. Leister, 35 111. App. 391. Maryland. Cook v. Gill, 83 Md. 177; Lyon v. George, 44 Md. 295. Missouri. Sogers v. Johnson, 125 Mo. 202; Dollarhide v. Mabary, 125 Mo. 197; Daudt v. Keen, 124 Mo. 105; Suddarth v. Bbbertson, 118 Mo. 286; Mayor of Liberty v. Burns, 114 Mo. 426; Krider &. Milner, 99 Mo. 145, 17 Am. St. Sep. 549; Stocker v. Green, 94 Mo. 280, „4 Am. St. Bep. 382n; Mead v. Spalding, 94 Mo. 43; Fairbanks v. Long, 91 Mo. 628 ; Hisey v. Goodwin, 90 Mo. 366; Harrington v. Minor, 80 Mo. 270; Cooper v. Ord, 60 Mo. 420; Cape Girardeau County v. Harbison, 58 Mo. 90; Weilandy v. Lemuel, 47 -Mo. 322; Conran v. Sel- lew, 28 Mo. 320; Davis v. Scripps, 2 Mo. 187; Blanke v. Dunnerman, 67 Mo. App. 591; Perkins v. School Dist. No. 2, Greene Co., 61 Mo. App. 512; Gage v. Averill, 57 Mo. App. Ill; King v. Allemania Fire Ins. Co., 37 Mo. App. 102; Stone v. Pennock, 31 Mo. App. 544; Gaty v. Clark, 28 Mo. App. 332; Lee v. Porter, 18 Mo. App. 377; Gaff v. Stern, 12 Mo. App. 115; Methudy v. Boss, 10 Mo. App. 106; De Laureal v. Kemper, 9 Mo. App. 77. 13 — Wendover v. Baker, 121 Mo. 273; Durfee v. Moran, 57 Mo. 377; Gill v. Clark, 54 Mo. 415; Moore v. Wingate, 53 Mo. 398; Freeman v. Wilkerson, 50 Mo. 554; Hunter v. Miller, 36 Mo. 143; Clouse v. Ma- guire, 17 Mo. 158; Smith v. St. Louis Beef Canning Co., 14_ Mo. App. 526. CHAPTER II. Necessity and Office of Instructions. § 4. Object and purpose of instructions. § 5. Eight to instructions — Duty of court. § 4. Object and purpose of instructions. It is the object and office of instructions to define for the jury and to direct their attention to the legal principles which apply to and govern the facts proved or presumed in the case. 1 It will be noted in a later chapter that the determination of all questions of fact is a matter exclusively for the deter- 1— State v. Clark, 64 W. Va. 625; State v. Dodds, 54 W. Va. 289. The proper office of an instruction is to lay down the law applicable to a state of facts which the proof tends to establish. Chicago Union Traction Co. v. O'Brien, 219 111. 303; Chicago & J. Elec. By. Co. v. Spence, 115 111. App. 465; Weller Mfg. Co. v. Krum- holz, 102 111. App. 284. The office of an instruction is to state the rule of law applicable and pertinent to the matter to be deter- mined. Kelly v. Chicago, E. I. & P. E. Co., 138 Iowa 273, 128 Am. St. Eep. 195. The purpose of instructions is to guide the jury in the application of right principles to the facts of the case. Terry v. Davenport, 170 Ind. 74. It is the office of a charge to in- ( form the jury plainly and intelli- gibly as to the rules of law applic- able to the issues and evidence and necessary to guide them to a just ver- dict. Com. v. Dow, 217 Mass. 473. The most important function of in- structions is to declare what rules of law will apply to any state of facts which may be found in the case and to assist the jury in correctly apply- ing these rules to the facts: Arkansas. Pleasant v. State, 15 Ark. 625. Illinois. Keeler v. Stuppe, 86 111. 309; Hamilton v. Hunt, 14 111. 472; Baxter v. People, 8 111. 368; First Nat. Bank of Lanark v. Eitemiller, 14 111. App. 22. Kansas. Sawyer v. Sauer, 10 Kan. 466. Michigan. Lendberg v. Brother- ton Iron Min. Co., 75 Mich. 84; Sou- 4) § 4] Necessity and Office of Instructions. 5 mination of the jury, while, on the other hand, the decision of all questions of law arising in a case is a matter exclu- sively within the province of the cour£. 2 Jurors have no knowledge of law and are even unfamiliar with the language in which it is expressed. Accordingly, the purpose of in- structions is to enlighten the jury, 3 and to submit the ques- tions of fact for their determination. 4 In this connection it may also be stated that it is the office of instructions to suggest, so far as necessary, the principles of evidence and thei-r application. 5 A statement of the rules for testing the credibility of wit- nesses, and estimating the probative force of the various kinds of evidence, is very essential to a correct conclusion, especially where there is considerable conflict in the evi- dence, and the evidence is nearly in equilibrium. In submitting questions of fact it is necessary that the issues involved in the case should be stated to the jury, and what issues are raised by the pleadings is a question of law which it is the exclusive province of the court to determine. 6 To have the jury determine what the issues are Would necessarily be productive of great confusion and uncer- tainty, especially since it is a well known fact that even judges, whose lives have been devoted to a study of the law, frequently find some difficulty in defining the issues. Accordingly, it is the office of instructions to explain to vaia v. Leavitt, 50 Mich. 108; Welch 4 — The proper province of an in- v. Ware, 32 Mich. 77. struction is to submit questions of Nevada. State v. Levigne, 17 Nev. fact, not propositions of law. Barton 435. v.'City of Odessa, 109 Mo. App. 76. Texas. St. Louis Southwestern R. It is the province of instructions to Co. of Texas v. Cleland, 50 Tex. Civ. tell the jury what facts are necessary App. 499. to be found in order to decide an is- Wisconsin. Hasbrouck v. City of sue submitted. Commerce Trust Co. Milwaukee, 21 Wis. 219. v. White, 172 Mo. App. 537. 2 — See eh. VII, post. 5— Souvais v. Leavitt, 50 Mich. 108. 3 — Rio Grande Southern R. Co. v. See also, Welch v. Ware, 32 Mich. 77. Campbell, 44 Colo. 1, 96 Pac. 986. 6— See ch. IX, § 92, post. 6 Instructions to Juries. [§ 4 the jury what the issues in the cause are, 7 to present sueh issues in the form most intelligible to the jury, 8 and to, confine the jury to a, determination of such issues, exclud- ing from their consideration all irrelevant matters. 9 ^'The principal benefit to be derived from a charge to the jury is not the statement of propositions of law but the elimina- tion of irrelevant matters and cause of action or allegations as to which no evidence has been offered, and thereby 'let the jury understand and appreciate the precise facts that are material and determinative." 98 The instructions must be predicated upon the pleadings and evidence, 10 but it is not the function of the charge to review the pleadings as to the fulness of the allegations. 11 Another office which instructions serve is to show the reviewing court on what theory the trial court decided in cases tried without a jury. 12 In this connection it may be remarked that instructions' are frequently used to correct errors which occur at the trial. This subject will, however, be considered in a sepa- rate chapter. 13 § 5. Right to instructions — Duty of court. At common law, and unless prohibited by statute, the court has the right to give the jury correct instructions applicable to the law and facts of the case, 14 irrespective of whether any instructions have been requested by the 7 — Forbes v. Jason, 6 111. App. 395; 170; Ford v. City of Cameron, 19 Mo. Souvais v. Leavitt, 50 Mich. 108; St. App. 467. See also, Butts v. Gunby & Louis Southwestern R. Co. of Texas West, 135 Mo. App. 28; Spurgeon v. v. Clelana, 50 Tex. Civ. App. 499. West, 23 Mo. App. 42. 8 — Louisville & N. E. Co. v. King's 13— See ch. 33, post. Adm'r, 131 Ky. 347. 14— City of Chicago v. Keefe, 114 9 — Newell v. St. Louis Bolt & Iron 111. 222, 55 Am. Eep. 860n; Brown v. Co., 5 Mo. App. 253. People, 9 111. 439; State v. Burns, 8 9a — Irvin v. Southern E. Co., 164 Nev. 251; Gwatkin v. Com., 9 Leigh N. C. 5. (Va.) 678; Blunt v. Com., -4 Leigh 10— See ch. VIII, post. > (Va.) 689. 11 — Neal v. Davis Foundry & Ma- A justice of the peace has no au- chine Works, 131 Ga. 701. thority to instruct a jury in the ab- 12 — Harrison v. Bartlett, 51 Mo. sence of a statute expressly conferring § 5] Necessity and Office of Insteuctions. 7 parties or not, although -in a number of states the rule is established that a party desiring to have instructions given must make a proper request for such charge. 15 Each party is entitled to have the jury clearly and accu- rately instructed as to the law of the case, 16 and, as will be noted further on, it is regarded as the duty of the court to state the claims of both parties upon all questions of fact that arise in the case. 17 The jury should have the benefit of every principle of law which may elucidate the facts. 18 It is the duty of the court to state the law applicable to the facts and it is also the duty of the jury to accept the instructions as the law. 19 The court may volunteer an instruction embracing its views of the law, 20 and indeed it is the duty of the court to do so where the justice of the case seems to require it. 21 One of the very objects of having a judge is to instruct the jury on the law applicable to the case. Hence, it is rather a duty than error for the court, on its own motion, to instruct the jury, where it seems to be required by the justice of the case. 22 It has been held the duty of the court to instruct the jury to disregard improper remarks of counsel. 23 such power. St. Joseph Mfg. Co. v. 20 — Thistle v. Frostburg Coal Co., Harrington, 53 Iowa 380. 10 Md. 129. 15 — See ch. XV, post, "Bequests The court has the right to volun- for Instructions." teer an additional charge on the gen- 16 — Illinois Cent. B. Co. v. Maffit, eral rule as to finding according to a 67 111. 431. preponderance of the evidence. Park- 17— See ch. XIII, § 143, post. er v. Georgia Pac. E. Co., 83 Ga. 539. 18 — United States Exp. Co. v. 21 — Gwatkin v. Com., 9 Leigh Hutchins, 58 111. 44. (Va.) 678. But see ch. XV, §156, 19 — City of Jacksonville v. Loar, post, as to necessity of requesting 65 111. App. 218. instructions. The court should instruct the jury 22 — Stumps v. Kelly, 22 111. 140. as to the law on the facts which the 23 — Ohio & M. B. Co. v. Cullison, evidence tends to prove. Mitchell v. 40 111. App. 67. See also, ch. XXV, Town of Fond du Lac, 61 HI. 174; §252, post. Ambrose v. Angus, 61 111. App. 304. 8 Instructions to Juries. [§ 5 It has also been held bad practice for the court to give instructions of its own motion and inform the jury that the instruction was of the court's own motion. 24 24— Beggs v. Postal Tel.-Cable Co., ' 159 111. App. 247. CHAPTER in. Necessity oe Propriety of Definition by Court of Terms Used, and Correctness of Such Definition. § 6. Scope of chapter. § 7. Words and terms of ordinary meaning. § 8. Legal terms or words of technical meaning. § 9. "Negligence," "carelessness" and similar terms. § 10. Statutory words. § 11. Defining offense alleged against defendant in criminal prosecution. § 6. Scope of chapter. Before proceeding to a consideration of the general requisites of instructions, 1 or their form, 2 it is not inappro- priate to consider the terms used by courts in such instruc- tions as well as the necessity or propriety of defining such terms, and the correctness of definitions. The question as to the effect of verbal inaccuracies, is however, treated in a subsequent chapter. 3 § 7. Words and terms of ordinary meaning. As a general rule it may be stated that it is not necessary to explain or define the meaning of ordinary words and phrases when used in their customary and conventional 1 — S ee c h. IV, post. Missouri. State v. Sattley, 131 Mo. 2_See ch. V, post. 464; State v. Cantlin, 118 Mo. 100; 3 — g e e ch. V, § 32, post. Holland' v. McCarty, 24 Mo. App. 113. 4 — Illinois. Henderson v. People, Texas. Humphreys v. State, 34 124 111. 607, 7 Am. St. Rep. 391. Tex. Cr. App. 434. Iowa. ,Iowa State Sav. Bank v. Vermont. Eastman v. Curtis, 67 Black, 91 Iowa 490; Rogers v. Milr Vt. 432. lard, 44 Iowa 466. Maine. Berry v. Billings, 47 Me. 328- • (95 10 Instructions to Juries. [§7 The jury are presumed to possess ordinary intelligence, and to understand the meaning of words in common and ordinary use, 5 and frequently the attempt to define a word or phrase in common use would merely confuse the jury. 6 A number of cases illustrative of this principle will be found in the notes, where the particular words and phrases considered have been arranged alphabetically. 7 Such cases 5 — Rogers v. Millard, 44 Iowa 466; Berry v. Billings, 47 Me. 328; A. J. Anderson Electric Co. v. Cleburne Water, Ice & Lighting Co., 23 Tex. Civ. App. 328. 6 — State v. Davidson, 172 Mo. App. 356. 7 — "Acquiescence" isv.a word of ordinary meaning which need not be defined. Iowa State Sav. Bank v. Black, 91 Iowa 490. "Actual danger" in an instruction as to self-defense, is not a technical term and need not be defined. Dan- ford v. State, 53 Fla. 4. "Adoption" need not be defined. Iowa State Sav. Bank v. Black, 91 Iowa 490. "Anger" need not be defined. Robinson v. State (Tex. Or. App.), 63 S. W. 869. "Assault" need not be defined in a prosecution for procuring an abor- tion where the charge correctly states what the jury is required to find be- fore they can convict. Link v. State, — Tex. Cr. App. — , 164 S. W. 987. ' 'Authority" need not be explained when used in an instruction in an ac- tion to recover for extra work, where the question was as to the authority of an architect to order extra work. Holland v. McCarty, 24 Mo. App. 112. "Boarded" in action to recover for board it is not necessary to define boarded. Rogers v. Millard, 44 Iowa 466. "Cohabit" is a word in general use which presumptively would be un- derstood by a jury, and it is not error not to define it. State v. Knost, 207 Mo. 18. "Compel" need not be defined. St. Clair v. Missouri Pac. E. Co., 29 "Mo. App. 76. "Consignee" is a word which has a well-understood meaning and it need not be defined in a prosecution for embezzlement where no instruction requesting such definition is asked. Pope v. State, 71 Tex. Cr. App. 261. "Contributed" need not be de- fined. See Bunyan v. Loftus, 90 Iowa .122, in which the court said that to presume that the jury did not understand this word "would be equivalent to holding that their ig- norance was so dense as to unfit them for jury service." "Corroborated" is a word the meaning of which is generally under- stood, and it need not be defined. Moore v. State, — Tex. Cr. App. • — , 144 S. W. 598. But see § 8, -post, where "corroborated" was held to, be a word which should be explained. "Corroboration" is a word of or- dinary use which need not be defined when used in an instruction in a pros- ecution for rape. Austin v. State, 51 Tex. Cr. App. 327. '/Countenance" need not be de- fined. Cooper v. Johnson, 81 Mo. 483. "Credible'* is an ordinary good English word which need not be ex.- §7] Definition of Teems. 11 frequently declare that the failure of a court to define a term of common use is not prejudicial error. And in some plained or defined. Barber v. State, 64 Tex. Cr. App. 96. "Diligent inquiry." The phrase ' ' by diligent inquiry ' ' need not be ex- plained. Cottrill v. Krum, 100 Mo. 397. "Exhibit" as used in instruction that defendant did exhibit in a rude, angry and threatening manner, a certain pistol, held a word of plain English in common usage which was not required to be defined. State v. Nichols, — Mo. — , 170 S. W. 1110. "Feloniously" need not be defined. State v. Penney, 113 Iowa 691; State v. Weber, 156 Mo. 249; State v. Cantlin, 118 Mo. 100. Failure to define "feloniously" is not preju- dicial error. Collier v. Common- wealth, 160 'Ky. 338. "Good and workmanlike manner" is a phrase employed in every build- ing contract and is so well understood that any attempt to define it would merely confuse the jury. Kleiderer & Son v. Aldridge's Ex'x, 160 Ky. 638. "Guarantee" need not be defined. Eeeds v. Lee, 64 Mo. App. 686. "Holding up" a train is an ex- pression which need not be explained. See Territory v. McGinnis, 10 N. M. 269, 61 Pac. 208, holding that the words are universally understood to mean an assault on a train with in- tent to commit murder or some other felony. "Imminently" with the average man needs no detailed definition, and if it does, an instruction defining the word should be requested. Great Western Coal & Coke Co. v. Malone, 39 Okla. 693, 136 Pac. 403. "Lucid interval" has a well-un- derstood meaning and need not be defined in the absence of request. ' Montgomery v. State, — Tex. Cr. App. — , 151 S. W. 813. "Malice aforethought." Failure to define "malice aforethought" is not reversible error. Collier v. Com- monwealth, 160 Ky. 338. "Maliciously" need not be de- fined. State v. Harkins, 100 Mo. 666. "Material facts" is not a term of technical meaning and requires no definition, and an attempt to define such term would merely confuse the jury. State v. Davidson, 172 Mo. App. 356. "Net to him," as used in an in- struction as to the price of goods need not be explained. "Schramm V. Wolff, — Tex. Civ. App. — , 126 S. W. 1185. "Permit" need not be explained. Humphreys v. State, 34 Tex. Cr. App. 434. "Procure" in an instruction in a prosecution for pandering, need not be defined, being a ' word of common use. Currington v. State, 72 Tex. Cr. App. 143. /'Prostitution" need not be de- fined. Tores v. State (Tex. Cr. App.) 63 S. W. 880. ' 'Ratify' ' and ' 'ratification' ' need not be defined. Young v. Craw- ford, 23 Mo. App. 432. Such words are not purely technical, legal expres- sions. Iowa State Sav. Bank v.' Black, 91 Iowa 490. "Reasonable" held not a word which was required to be defined. York v. City of Everton, 121 Mo. App. 640. ' "Reasonable time" is an expres- sion which need not be defined, as the 12 Instructions to Jukies. [§7 states it is said that it is not incumbent upon the' court to explain the meaning of words which are well understood unless requested to do so. 8 The mere fact that, under cer- tain circumstances, courts of law have been called upon to determine the meaning of such words, does not destroy the popular character of the words. 9 § 8. Legal terms or v/ords of technical meaning. When legal or technical terms, or terms not in common use and having a special meaning are used in instructing the jury, the court should explain such terms or define them. 10 In some states, statutory provisions require the court average juror is supposed to know what is meant by the same. Hous- ton & T. C. By. Co. v. Roberts, 50 Tex. Civ. App. 69. "Remotely" need not be defined. Muehlhausen v. St. Louis E. Co,, 91 Mo. 332. "Repudiation" need not be de- fined. Iowa State Sav. Bank v. Black, 91 Iowa 490. ' ' Substantial compliance ' ' with the terms of a contract is a term of ordinary meaning which need not be defined. Linen v. Paris Lumber & Grain Elevator Co., 80 Tex. 36; A. J. Anderson Electric Co. v. Cleburne Water, Ice & Lighting Co., 23 Tex. Civ. App. 328. But see Johnson v. White- (Tex. Civ. App.) 27 S. W. 177, wherein the court inclined to the view that the term ought to be defined, but overruled an assign- ment of error upon the authority of the preceding case. "Suddenly," "unexpectedly," and "impulse of the moment," when used in a. charge as to acts of a de- ceased who was killed by being caught between railroad cars, are words of common use which need not be ex- plained. Trinity & B. Val. By. Co. v. Elgin, 56 Tex. Civ. App. 573. "Unfaithfulness" need not be defined. Berry v. Billings, 47 Me. 328. "Wantonly" when used as mean- ing maliciously, and when it could not have been otherwise understood need not be specifically defined. Cody v. Gremmler, 121 Mo. App. 359. "Wilfully" used in its ordinary and popular sense need not be de- fined. Morris v. St. Louis & S. F. B. Co., 184 Mo. App. 65; State v. Hark- ins, 100 Mo. 666. "Would hold water" as used in a contract to construct a dam, are Words of common use which need not be defined. Lattimore v. Puckett & Wear, — Tex. Civ. App. — , 161 S. W. 951. 8 — Montgomery v. State, . — Tex. Cr. App. — , 151 S. W. 813. 9 — Edelmann v. St. Louis Transfer Co., 3 Mo. App. 506. 10 — Arizona. Bush v. French, 1 Ariz. 99, 25 Pac. 530. California. People v. Byrnes, 30 Cal. 207. Mississippi. Jarnigan v. Fleming, §8] Definition of Tebms. 13 to submit such explanations and definitions of legal terms as shall be necessary, 11 and some decisions hold that it is indispensable that legal and technical terms, should be defined and explained, 12 especially when requested, 13 but ordinarily the failure of the trial court to define legal phrases or give definitions is not error unless the party objecting has requested a charge, giving such definition in the lower court. 14 And it has been held that the unex- plained use, in an instruction, of a word having a technical legal meaning, which is not essentially different from the meaning in common use, is not ground for reversing a judgment. 15 43 Miss. 710, 5 Am. Kep. 514; Mullins v. Cottrell, 41 Miss. 291. Missouri. Stewart v. City of Clin- ton, 79 Mo. 603; Flint-Walling Mfg. Co. v. Ball, 43 Mo. App. 504; Digby v. American Cent. Ins. Co., 3 Mo. App. 603; Dyer v.. Brannock, 2 Mo. App. 432. Tennessee. Boilings v. Cate, 1 Heisk. (Tenn.) 97. Texas. Wheeler v. State, 23 Tex. App. 598. It is always proper to explain the meaning of legal or technical terms, differing in. meaning from their popu- lar use, or not generally known. Cobb v. Covenant Mut. Benev. Ass'n, 153 Mass. 176, 10 L. E. A. 66i», 25 Am. St. Bep. 619 ; Gibson v. Cincinnati En- quirer, 5 Cent. Law J. 380, Fed. Cas. No. 5, 392. It is proper to instruct as to the meaning of words in the pleadings. Smith v. Plant, 216 Mass. 91. Technical terms or terms not in common use and having special mean- ing should be explained. Schramm v. Wolff, — Tev. Civ. App. — , 126 S. W. 1185. 11 — Under Acts Texas 33 Leg., p. 113, art. 1984a, amending B, S. tit. 37, ch. 14, the court in submitting special issues shall submit such expla- nations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and ren- der a verdict. St. Louis, S. F. & T. R. Co. v. Wall, — Tex. Civ. App. — , 165 S. W. 527. 12 — Schmidt v. Sinnott, " 103 111. 160; De Los Santos v. State (Tex. Cr. App.) 31 S. W. 395. 13 — City of Junction City v. Blades, 1 Kan. App. 85. 14 — Johnson v. Missouri Pac. R. Co., 96 Mo. 340, 9 Am. St. Bep. 351; Schneider v. Hosier, 21 Ohio St. 98; Lagow v. Glover, 77 Tex. 448; Ellerd v. Campfield, — Tex. Civ. App. — , 161 S. W. 392. In the Johnson case supra the court said: "As to the failure of the court to go further and define the meaning of the words 'reasonable care and diligence,' we have not been cited Ao, nor have found, any authority going to the extent of saying that the mere omission to give an instruction defin- ing the above terms, where none is asked, is reversible error." 15 — Miller v. Woolman-Todd Boot & Shoe Co., 26 Mo. App. 57; Murphy v. Creath, 26 Mo. App. 581. 14 Instructions to Juries. [§ 8 Where a word is used in an instruction which might be taken in different senses, and the jury follows the instruction in the sense jn which it was intended, a judgment on the ver- dict will not be reversed because the jury might have fol- lowed it in the sense in which it was not intended. 16 The failure to define a legal term may, however, render an instruction misleading, 17 and requested instructions which contain technical terms needing explanation may be re- fused. 18 Where an instruction is given on the request of a party, he cannot complain that it is insufficient in defini- tion or explanation of terms used therein. If he desires a correct definition of the terms used, he must ask for it. 19 If the court is led into error by a defendant, in modifying an instruction, by using a word without denning it, the defendant cannot complain, especially where another of the defendant's instructions contains a word which is synonymous with the word used by the court. 20 A number of cases illustrative of the foregoing principles will be found in the notes. As in the case of words or terms of ordinary meaning, 21 the various phrases and words have been arranged alphabetically. 22 16 — Parkhurst v. Masteller, 57 accident. Ebert v. Metropolitan St. Iowa 474. R. Co., 174 Mo. App. 45. 17 — See Policemen's Benev. Ass'n "Adverse possession", should be of Chicago v. Ryce, 213 111. 9, aff 'g defined. Dyer v. Bannock, 2 Mo. App. 115 111. App. 95, 104 Am. St. Rep. 432. 190n. "Aggravated assault," when sub- 18 — Boogher v. Neece, 75 Mo. 383; mitted in a prosecution for assault Fletcher v. Milburn Mfg. Co., 35 Mo'. with intent to rape, should be defined. App. 321. Scott v. State, — Tex. Cr. App. — , 19— Kelley v. Cable Co., 7 Mont. 166 S. W. 729. 70, 14 Pac. 633. "Autoptic proference." A charge 20 — Julian v. Pierson, 182 111. App. that evidence may be "autoptic pro- 400. ference, " a phrase used in place of 21 — See ante, § 7. " real evidence, ' ' is not misleading or 22 — "Accident" as used in in- incorrect, where the expression is struetion stating that defendant was clearly made known to the jury in not liable if death was caused solely plain, understandable language, by accident, held to render the charge Morse v. State, 10 Ga. App. 61. misleading, since there was no ex- "Bad place." In an action for planation or definition of the word the death of a person killed, while §8] Definition op Teems. 15 It will be noted that in some cases words of ordinary meaning have been held to require an explanation when working in a mine, by falling slate, an instruction as to the roof being a ' ' bad place ' ' was erroneous because the quoted word was not defined. Duncan Coal Co. v. Thompson's Adm'r, 157 Ky. 304. "Burden of proof," when used in a sense different from its common meaning should be explained. Chi- cago Union Traction Co. v. Myers, 134 111. App. 61. "Burden of proof," when used in a requested instruction without defini- tion or explanation, will warrant a refusal of such charge, although ,the giving of an instruction containing such phrase is not prejudicial error. Berger v. St. Louis Storage & Com- mission Co., 136 Mo. App. 36. See also, Cramer v. Nelson, 128 Mo. App. 393. "Color of' title" is a term which should be explained. Boogher v. Neece, 75 Mo. 383. "Corroborated" should be ex- plained. State v. McLain, 159 Mo, 340. "Evidence in the case and the cir- cumstances surrounding the same' is a phrase which should be explained. Derham v. Derham, 125 Mich. 109. "Exciting state of fear," where used in an instruction that, if plain- tiff took Confederate money in pay- ment of a note, under an exciting state of fear, the payment would not constitute a legal payment, should be defined. Boilings v. Cate, 1 Heisk. (Tenn.) 97. "Exemplary damages" should be defined. Hayes v. St. Louis B. Co., 15 Mo, App. 584. It Is error to instruct that a plain- tiff is entitled to exemplary damages, without explaining what is meant by the term. Hink v. Sherman, 164 Mich. 352. ' ' Extraordinary floods. " lie- quested charges held subject to re- fusal because calculated to mislead the jury in not defining "extraordi- nary floods." Sloss-Sheffield Steel & Iron Co. v. Mitchell, 167 Ala. 226. "Fixtures" should be defined. Grand Lodge of Masons v. Knox, 27 Mo. 315. "Fraud." An instruction that a jury cannot find against an inter- pleader unless a sale of goods ( was made in fraud, is erroneous when it does not tell the jury what character of fraud defeats a sale. Keet-Boun- tree Dry Goods Co. v. Hodges, 178 Mo. App. 484. "Inherent vice" of cattle should be explained as it is pro"bable that the jury would not understand the legal significance, of the expressioni Ft. Worth & Denver City By. Co. v. Berry, — Tex. Civ. App. — , 170 S. W. 125. ' ' Insane delusion. " Onthetrialof an issue devisavit vel non, involving the insanity of the testator, the term "insane delusion" should be defined. Mullins v. Cottrell, 41 Miss. 291. But see "lucid interval", ante, § 7, which has been held a term in common use. '.'Malice" is a word which should be defined. Morgan v. Durfee, 69 Mo. 469; 33 Am. Eep. 508. "Material allegations." An in- struction that the withdrawal of the general issue admits the material al- legations of the declaration, must state what the material allegations 16 Instructions to Juries. [§ 8 used in a sense different from the ordinary meaning. The are. Geringer v. Novak, 117 111. App. 160. "Material facts" is a phrase which should be explained. Digby v. American Cent. Ins. Co., 3 Mo. App. 603. "Material to the issues" should be explained. State v. McLain, 159 Mo. 340. "Penetration." Where no re- quest is made for an instruction de- fining penetration in a prosecution for rape, no error can be predicated upon the failure of the court to define Buch term. State v. Oden, 69 Ore. 385, 138 Pac. 1083. "Preponderance of the evidence." Failure of the court to define "pre- ponderance of the evidence" held not error. Chicago City By. Co. v. Kas- trzewa, 141 111. App. 10; Cramer v. Nelson, 128 Mo. App. 393. "Preponderance of evidence" is a term having a peculiar meaning in law, and a requested instruction using such words without definition may be refused, although the giving of an instruction containing such term is not prejudicial error. , Berger v. St. Louis Storage & Commission Co., 136 Mo. App. 36 ; Berry v. Wilson, 64 Mo. 164; Steinwender v. Creath, 44 Mo. App. 360; Hill v. Scott, 38 Mo. App. 370. And instructions using the term without explanation may be properly refused. Clarke v. Kitchen, 52 Mo. 316; Mackin v. People's St. Ey. & E. L. & P. Co., 45 Mo. App. 82. In Texas it has been held unneces- sary to define the term, upon the ground that it has a well-known pop- ular meaning. Gulf, C. & S. F. Ey. Co. v. Eeagan (Tex. Civ. App.) 34 S. W. 798. Where one witness is op- posed by three, an instruction is er- roneous, as amounting to a comment on the weight of the evidence, that "you will decide all issues submitted to you by this charge by a prepon- derance of the evidence. By the term 'preponderance of the evidence' is meant not necessarily the greater num- ber of witnesses, but only the facts shall appear by the greater weight of testimony, as may seem to you most worthy of credit, under all the facts and circumstances of the case. ' ' St. Louis S. W. Ey. Co. v. Smith (Tex. Civ. App.) 63 S. W. 1064; Dallas Cotton Mills v. Ashley (Tex. Civ. App.) 63 S. W. 160. See also, Noyes v. Pugin, 2 Wash. St. 653, 27 Pac. 548, where it was held that an instruction that plaintiff must establish the material allega- tions of his complaint by a preponder- ance of testimony was not erroneous, the court saying that it would be presumed that the jury understood the word "testimony" as referring to all the evidence. "Probable profits." A judgment will not be reversed for the failure to define "probable profits" where no instruction defining such term is requested. Eamsay v. Meade, 37 Colo. 465, 86 Pac. 1018. "Prompt and proper treatment," as used in an instruction without be- ing defined in an action against a physician who was conducting a hos- pital, leaving it to the jury to deter- mine what was proper treatment, held improper. Dunnagan v. Briggs, 170 Mo. App. 691. ' 'Punitive damages. " It is proper to instruct as to punitive damages, but it is also to be presumed that a jury understands what is meant, and the defendant should request a 8] Definition of Teems. 17 cases consequently should be considered in connection with the cases mentioned in the notes to the previous section. ' charge defining such term. St. Louis & S. F. E. Co. v. Moore, 101 Miss. 768, 39 L. B. A. (N. S.) 978n, 1914 B 597n. "Requirements of the law." An instruction using the term "require- ments of the law" is improper when it does not specify what the require- ments are. City of Chicago v. Fields, 139 111. App. 250. "Satisfactory evidence" should be defined and an instruction contain- ing such phrase without being de- fined is misleading. Policemen 's Benev. Ass'n of Chicago v. Eyce, 213 111. 9, aff'g 115 111. App. 95, 104 Am. St. Eep. 190n. "Served with, process" is in some circumstances a technical phrase which should be explained, but where it is manifest that such words were understood, it is not reversible error to use the term without explanation. Miller v. Barnett, 124 Mo. App. 53. "To dispose of property with the intent to defraud creditors" should be defined. Matthews v. Boydstun (Tex. Civ. App.) 31 S. W. 814. "Under the direction." An in- struction directing a verdict for a defendant mining company if the jury believed from the evidence that the injured employee was engaged in timbering an entry under the di- rection of the defendant's mine man- ager held properly refused where no attempt was made in such instruc- tion or in any other charge to ex- plain the meaning of the words "under the direction" of the mine manager. Wilson v. Danville Col- lieries Coal Co., 264 111. 143. "Unlawfully" as applicable to a homicide or a murder trial should be Blashfield Vol. 1—2 explained. People v. Byrnes, 30 Cal. 207. "Wantonly and maliciously" in an instruction as to assault should be defined as meaning an evil or unlaw- ful purpose, as distinguished from that of promoting the justice of the law. Eomans v. McGinnis, 156 Ky. 205. "Warranty" should be explained. Flint-Walling Mfg. Co. v. Ball, 43 Mo. App. 504. "Wilfully" should be defined. Spares v. State, 23 Tex. App. 447; Wheeler v. State, 23 Tex. App. 598; Trice v. State, 17 Tex. App. 43; Thomas v. State, 14 Tex. App. 200; Dyrley v. State (Tex. Cr. App.) 63 S. W. 631. An instruction defin- ing the term "wilful" as "with- out reasonable ground for believing the act to be lawful, or a reckless disregard of the rights of others," has been held to give a correct defi- nition. Finney v. State, 29 Tex. App. 184. Where a penal statute makes intent to defraud one of the elements of the forbidden act, and the court, in a prosecution for a vio- lation of the statute, explains to the jury that the act alleged to consti- tute a violation must have been com- mitted with intent to defraud, it is not necessary for the court to ex- plain the term ' ' wilfully, ' ' also used in the statute, as wilfulness is nec- essarily implied in intent to defraud. Wheeler v. State, 23 Tex. App. 598. "Wrongful conduct." A failure to instruct as to what facts would, in law, constitute wrongful conduct, is erroneous, as it submits to the jury questions both of law and fact. 18 Instructions to Juries. [§9 §9. "Negligence," "carelessness" and similar terms. It has been held unnecessary to define or explain the meaning of , ordinary words such as ' ' care, " 23 " care- lessly," 24 "ordinary care," 25 "prudence," 26 "reasonable diligence, ' ' 27 and ' ' contributory negligence. ' ' 28 As to the term "negligence," it has been said that it would be better for the court to tell the jury what consti- tutes negligence or carelessness, 29 and in certain cases, 30 the failure to define such term may render an instruction erroneous. 31 That duty is often omitted, however, and on appeal it is usually held that a definition is not necessary in all cases for the reason that a jury of ordinary intelligence under- Lesser v. St. Louis & Suburban Ey. Co., 85 Mo. App. 326. 23 — Muehlhausen v. St. Louis E. Co., 91 Mo. 332. 24 — "Carelessly" need not be de- fined in some cases, being a word of well-understood meaning. Mather v. Metropolitan St. E. Co., 166 Mo. App. 142. "Carelessly," when used in an action by a landlord against his ten- ant for carelessly permitting stock to go into an orchard and destroy fruit trees, need not be defined. Warder v. Henry, 117 Mo. 531. 25 — "Ordinary care" need not be defined in the absence of a requested charge, the term being self-explana- tory. Western U. Tel. Co. v. Ford, 10 Ga. App. 606. Contra, "ordinary care" should be defined. Cleburne Electric & Gas Co. v. McCoy, — Tex. Civ. App. — , 149 S. W. 534. 26 — Muehlhausen v. St. Louis E. Co., 91 Mo. 332. 27 — "Reasonable diligence" are not words of technical meaning, but are well understood by the average juryman, and need not be defined. Texas Midland E. R. v. Eitchey, 49 Tex. Civ. App. 409. 28 — ' ' Contributory negligence ' ' need not be denned where the phrase is not used in the instructions deal- ing with such subject and in such case a definition would only confuse the jury. Galveston, H. & H. R. Co. v. Alberti, 47 Tex. Civ. App. 32. 29 — Eippetoe v. Missouri, K. & T. E. Co., 138 Mo. App. 402. 30 — It is only in certain instances that the term "negligence" should be defined. Richmond v. Missouri Pac. R. Co., 162 Mo. App. 422. 31 — "Negligence" should be de- fined. It is erroneous to submit the question of negligence to the jury unless such term is. defined. Dun- nagan v. Briggs, 170 Mo. App. 691. "Negligent" renders an instruc- tion erroneous when such charge merely directs a verdict on the find- ing that the injury was negligently inflicted. Mather v. Metropolitan St. R. Co., 166 Mo. App. 142. § 10] Definition of Teems. 19 stands the .meaning well enough, 32 and if a party desires a specific instruction as to such subject, it should be re- quested. 33 "Negligently," when used in an instruction without being defined is not reversible error, when such instruction requires the jury to find certain facts which in the absence of explanation the law itself pronounces negligent. 34 And it has also been held that the failure to define "negligent" when used merely to characterize acts stated in a given hypothesis, does not render the instruction so erroneous as to warrant reversal. 3 ? The rule that the term "negligence" must be defined does not refer so much to a mere law dictionary definition as to a definition by the statement of facts or acts from which the inference of negligence would have to be implied. 36 Terms such as "gross negligence," 37 "concurrent neg- ligence," 38 and "negligence per se," 39 should be ex- plained. § 10. Statutory words. It is unnecessary and not error not to define words in the Codes which are Ordinary English words and which are commonly and ordinarily understood by people generally. 40 32 — Bippetoe v. Missouri, K. & T. 38 — ' ' Concurrent negligence " is a E. Co., 138 Mo. App. 402. term which a jury would not under- ' ' Negligence ' ' need not be denned. stand unless they were lawyers. Edelmann v. St. Louis Transfer Co., Gardner v. Metropolitan St. B. Co., 3 Mo. App. 506. — Mo. App. — , 152 S. W. 98. 33 — Eippetoe v. Missouri, K. & T. 39 — "Negligence per se" should E. Co., 138 Mo. App. 402. properly be explained, but the fail- 34— -Burns v. United Eys. of St. ure to do so is not reversible error Louis, 176 Mo. App. 330. where the phrase was used by coun- 35 — Mather v. Metropolitan St. E. sel on both sides and was probably Co., 166 Mo. App. 142. understood by the jury. O'Connor 36 — Mather v. Metropolitan St. E. v. United Eys. of San Francisco, 168 Co., 166 Mo. App. 142. Cal. 43, 141 Pac. 809. 37 — The phrase "gross negli- 40 — Blackburn v. State, 71 Tex. gence"' should be defined. Warder Cr. App. 625. v. Henry, 117 Mo. 530; Wiser v. Chesley, 53 Mo. 547. 20 Instructions to Jueies. [§11 § 11. Defining offense alleged against defendant in crim- inal prosecution. The duty of the court to instruct as to the law of a case on trial includes a definition of the offense sufficient to inform the jury what facts are necessary for the proof to establish in order to justify them in finding a verdict of guilty. 41 But the court is not compelled to define the offense in the words of elementary text writers. A correct definition in the language of the court's own choosing is sufficient. 42 If the offense is statutory, it may be defined in the exact language of the statute, 43 and it has been said to be the better practice to do so. 44 Nevertheless, the use of other language conveying the same meaning, and not liable to misconstruction by the jury, is not erroneous, 45 but no ele- ment of the offense should be overlooked. 46 Where the charge taken as a whole substantially defines the offense and whatever words therein are necessary to be defined, it is all that is required. 47 In stating the statutory definition of a crime, it is unnec- essary to state the penalty. 48 It has been held not improper for the court to give the 41— Brook v. State, — Okla. — , 44 — State v. O'Brien, 18 Mont. 1, 115 Pac. 1026. 44 Pac. 399, 43 Pae. 1091; Long v. 42— State v. Clary, 24 S. C. 116. State, 23 Neb. 33. See also, ch. XV, § 189, as to using 45— Long v. State, 23- Neb. 33. It the words of a requested instruction is not necessary to copy the statute in charging the jury. into the instructions, where the 43 — Duncan v. People, 134 HI. 110. charge, as given, submitted all the An instruction, in a prosecution of constituent elements of the offense, a bank president for receiving de- Adkins v. State, 41 Tex. Cr. App. posits, knowing that the bank was 577. insolvent, that "a crime consists in 46 — Hix v. People, 157 111. 382; the violation of a public law, in the Adkins v. State, 41 Tex. Cr. App. commission of which there shall be 577. a union, or joint operation, of act 47 — Blackburn v. State, 71 Tex. ' and intention, or criminal negli- Cr. App. 625. gence," being the exact language 48 — Currier v. State, 157 Ind. 114. of the statute, is correct. McClure v. People, 27 Colo. 358, 61 Pac. 612. § 11] Definition of Teems. 21 jury a general description of the offense, although embrac- ing modes of commission not pertinent to the case, pro- vided a definition is subsequently given applicable to the pleadings and evidence. 49 It has been held better practice not to attempt to define technical terms such as "alibi," as a definition is often unintelligible to the jury, 50 but words such as "deliber- ate," 51 or "wilfully," 62 have been held words of legal meaning which should be defined. Where a "premed?tated design" is an essential element of the offense charged it is not ordinarily necessary to define such phrase, as it is presumed that the jury will understand such words. 53 In the ordinary case pf murder in the first degree, malice aforethought and premeditation are constituent elements of the crime which should be defined. 54 But in a case where poison is deliberately administered in the perpetration of a robbery, and death ensues, the killing is murder in the first. degree, and malice afore- thought and premeditation are not elements of the offense and such terms need not be defined. 55 In a homicide case where it is necessary to charge on "cooling time," the court should define such term. 56 49 — State v. Anderson, 10 Ore. word of legal meaning which should 448. be defined. Windon v. State, 56 Tex. 50— Tinsley v. State, 52 Tex. Cr. Cr. App. 198. App. 91. Where a charge in a prosecution 51— -" Deliberate " in an instruc- for false swearing fails to define tion on a trial for perjury should be "wilfully" and- is properly excepted defined. Windon v. State, 56 Tex. to, an accused is entitled to a re- Cr. App. 198. versal. Knight v. State, 71 Tex. Where a charge in a prosecution Civ. App. 36. for false swearing, failing to define 53— McDonald v. State, 55 Pla. "deliberately" is properly ex- 134. cepted to, an accused is entitled to a 54 — State v. Daly, 210 Mo. 664. reversal. Knight v. State, 71 Tex. 55— State v. Daly, 210 Mo. 664. Civ. App. 36. 56 — Kannmacher v. State, 51 Tex. 52 — "Wilful," when used in an Cr. App. 118. instruction in a perjury case, is a 22 Instbtjctions to Juries. [§H "Provoked the difficulty or began the quarrel," when used in an instruction in a homicide case is self -explanatory and an explanation of such language would only confuse the jury. 57 "Occupation" or "business," need not be defined in a prosecution for selling malt liquor or beer without a license as dealer, when neither of such words are used in the stat- ute under which the prosecution was had. 58 When a word or phrase is correctly defined, the definition need not be repeated. 59 57— State v. Long, 201 Mo. 664. 58 — Figueroa v. State, 71 Tex. Cr. App. 371. 59 — "Felony" being defined, no further definition of the term is re-' quired. O 'Pry v. State, 142 Ga. -600. ' ' Mitigating circumstances ' ' when defined in a charge on manslaughter need not be further defined. Holt v. State, 51 Tex. Cr. App. 15. "Wilfully" when defined in a general charge in a prosecution for disturbing an assemblage need not be defined in a special charge, or in each paragraph of the charge where- in , the word is used. Haynes v. State, 71 Tex. Cr. App. 31. Where deadly weapons are suffi- ciently defined in a portion of a charge, such definition need not be repeated, and in any event the char- acter of weapons such as a shotgun or a six-shooter 'of 45 caliber would hardly need defining. Wheeler v. State, 56 Tex. Cr. App. 547. CHAPTER IV. General Requisites. § 12. Necessity of covering whole case. § 13. Completeness. § 14. Qualifications or limitations of general rules. § 15. Length and number of instructions. § 16. Bequests for long and numerous instructions. § 17. Repetition. § 18. Argumentative instructions. § 19. Same — What are argumentative instructions. § 20. Same — Argumentativeness as ground for reversal. § 21. Contradictory instructions. § 22. Same — Instructions held bad as being contradictory. § 23. Same — Instructions held not contradictory. § 24. Same — Incorrect instructions not cured by inconsistent correct instruc- tions. § 24a. Same — Contradictory charges as grounds for reversal. § 12. Necessity of covering whole case. Each instruction given need not embrace all the issues, or the whole case, or the whole of any branch of the case. 1 1 — Alabama. Hawkins v. Hudson, Minnesota. Peterson v. Chicago, 45 Ala. 482. M. & St. P. By. Co., 38 Minn. 511. Arkansas. St. Louis, I. M. & S. Mississippi. Clisby v. Mobile & By. Co. v. Baker, 67 Ark. 531. O. B. Co., 78 Miss. 937. California. People v. Clark, 84 Missouri. Schroeder v. Michel, Cal. 573, 24 Pac. 313; People v. Tarn- 98 Mo. 43; Dougherty v. Missouri B. kin, 62 Cal. 468. Co., 97 Mo. 647; Muehlhausen v. St. Illinois. City, of Bock Island v. Louis B. Co., 91 Mo. 332. Starkey, 189 111. 515. North Carolina. Barringer v. Indiana. Bundy v. McKnight, 48 Burns, 108 N. C. 606. Ind. 502; Hayes v. West, 37 Ind. 21. Ohio. Ohliger v. City of Toledo, Iowa. Munger v. City of Water- 20 Ohio Cir. Ct. B. 142. loo, 83 Iowa 559; Deere v. Wolf, 77 Oregon. Smitson v. Southern Pac. Iowa 115. Co., 37 Ore. 74, 60 Pac. 907. Kansas. State v. Kyne, 10 Kan. Texas. Freiberg v. Johnson, 71 App. 277, 62 Pac. 728. Tex. 558. Michigan. Anderson v. Walter, The entire law of the case need 34 Mich. 113. not be stated in a single instruction. (23) 24 Instructions to Juries. [§12 It is a general rule that instructions will be considered and construed as a whole, 2 and, as was well said in one case: "It is not required that the entire law of the case shall be stated in a single instruction, and it is therefore, not improper to state the law, as applicable to particular questions or particular parts of the case, in separate instructions ; and if there is no conflict in the law as stated in different instructions, and all the instructions consid- ered as a series present the law applicable to the case fully and accurately, it is sufficient. ' ' 3 § 13. Completeness. In so far as an instruction undertakes to state a proposi- tion of law, it must do so completely and correctly, 4 but Peoria & P. Terminal Ey. v. Schantz, 226 111. 506, aff'g 130 111. App. 141; Trubey v. Eichardson, 224 111. 136; Chicago, E. I. & P. E. Co. v. Turck, 131 111. App. 128; Masonic Fraternity Temple Ass'n v. Collins, 110 HI. App. 504, aff'd 210 111. 482. It is not necessary that every in- struction should have embodied in it every fact or element essential to sustain the action, or that it should negative matters of defense. A sin- gle instruction need not cover the en- tire case. Illinois. "Village of Sheridan v. Hibbard, 119 111. 307. Indiana. Colee v. State, 75 Ind. 511. Missouri. Swan v. Lullman, 12 Mo. App. 584. Oklahoma. Grant v. Milam, 20 Okla. 672, 95 Pac. 424. Virginia. Greever v. Bank of Gra- ham, 99 Va. 547. In a criminal case it is not neces- sary "to state in connection with each legal proposition * * * that it must appear that the offense was committed in the county" named in the indictment. Keys v. State, 112 Ga. 392, 81 Am. St. Eep. 63. 2— See ch. XVI, post. 3— Chicago & E. I. E. Co. v. Hines, 132 111. 161, 22 Am. St. Eep. 515, aff'g 33 111. App. 271. Quoted in Grant v. Milam, 20 Okla. 672, 95 Pac. 424. 4 — Forsyth v. Bower, 54 Cal. 639; Ohio, I. & W. E. Co. v. Kleinsmith, 38 111. App. 45; Sweet v. Leach, 6 111. App. 212; Gale v. Eector, 5 111. App. 481; Ottawa, O. & F. E. Val. E. Co. v. McMath, 4 111. App. 356. But see Schroeder v. Michel, 98 Mo. 43. Everything that is essential to the expression of a single rule should be expressed in a single instruction. Worden v. Humeston & S. Ey. Co., 72 Iowa 201; Thomas v. Babb, 45 Mo. 384. See also, Chicago & A. E. Co. v. McDonnell, 91 111. App. 488. Instructions ignoring duty of mine operator not to permit work while dangerous conditions existed, held §13] G-enekal Requisites. 25 when an instruction is given which states a "complete, accurate and pertinent proposition," it is not erroneous because it fails to embrace another proposition which would be appropriate in that connection. 5 So, also, an instruction which correctly states the law of the case is sufficient though it does not refer to exceptions applicable to another state of facts. 6 All the qualifications and conditions necessary to render an instruction correct and applicable to the case at bar need not be contained in such charge. 7 The proper qualifi- cation may be made in separate instructions. 8 The trial judge cannot be expected to reiterate every qualification and condition with every clause of the charge. 9 erroneous. Mengelkamp v. Consoli- dated Coal Co., 259 111. 305. A requested instruction ■which leaves it to the jury to determine what are the material points in the case from the declaration, and with- out any other instructions to guide them, held properly refused. Shew- bridge v. Chicago City Ey. Co., 188 111. App. 454. 5 — Lucas v. State, 110 Ga. 756. 6 — Gilbert v. Watts-de Golyer Co., 169 111. 129, 61 Am. St. Eep. 154, aff'g 66 111. App. 625. 7 — California. People v. Etting, 99 Cal. 577, 34 Pac. 237; People v. Clark, 84 Cal. 573, 24 Pac. 313; Peo- ple v. Hurtado, 63 Cal. 288; People v. Welch, 49 Cal. 174; People v. Doyell, 48 Cal. 85. Indiana. Taylor v. Wootan, 1 Ind. App. 188, 50 Am. St. Eep. 200. Iowa. Eice v. City of Des Moines, 40 Iowa 638. Minnesota. Gates v. Manny, 14 Minn. 21. Missouri. Perrette v. City of Kan- sas City, 162 Mo. 238. New York. Hickenbottom v. Del- aware, L. & W. E. Co., 122 N. Y. 91. Oregon. Farmers ' & Traders ' Nat. Bank v. Woodell, 38 Ore. 294, 65 Pac. 520, 61 Pac. 837. 8— California. People v.' Clark, 84 Cal. 573, 24 Pac. 313; Davis v. But- ton, 78 Cal. 247, 20 Pac. 545, 18 Pac. 133; Bradley v. Lee, 38 Cal. 362. Colorado. De St. Aubin v. Mar- shall Field & Co., 27 Colo. 414, 62 Pac. 199. Florida. Keech v. Enriquez, 28 Fla. 597. Illinois. West Chicago St. E. Co. v. Krpmshinsky, 185 111. 92, aff'g 86 111. App. 17. Iowa. Allen v. Burlington, C. E. & N. E. Co., 57 Iowa 623; Lombard v. Chicago, E. I. & P. E. Co., 47 Iowa 494; Steer v. City of Oskaloosa, 41 Iowa 353. Missouri. Meyer v. Southern Ey. Co. (Mo.) 36 S. W. 367. Oregon. Smitson v. Southern Pac. Co., 37 Ore. 74, 60 Pac. 907. South Carolina. Fletcher v. South Carolina & G. El E. Co., 57 S. C. 205; Thackston v. Port Eoyal & W. C. Ey. Co., 40 S. C. 80. 9 — Watson v. Watson, 58 Mich. 507. 26 Instkuctions to Juries. [§13 "If an instruction contains a complete statement of a proposition of law applicable to the facts in a given case it will be, held good as part of a series containing the entire law of the case." 10 < It is improper to give an instruction dealing with but one fact in the evidence, 11 or to give instructions ignoring mate- rial evidence, issues and theories. 12 An instruction intended to cover the whole case, and upon which, if met by the evidence, the jury are told to find in a certain way, should include all the elements necessarily involved in the case and within the evidence. 13 § 14. Qualifications or limitations of general rules. It has been noted in the previous section that exceptions and qualifications necessary to make an instruction correct 10— Yundt v. Hartrunft, 41 111. 9; Walker v. Collier, 37 111. 362; Taylor v. Wootan, 1 Ind. App. 188, 50 Am. St. Bep. 200. 11 — Instruction that the mere fact that the wheel came off is not of it- self evidence of negligence, held properly refused since similar in- structions as to every essential fact might otherwise be given. Hoffman v. Ernest Tosetti Brewing Co., 257 111. 185, rev'g 167 111. App. 291. 12 — See ch. X, -post. 13 — Blinois. McNulta v. Jen- kins, 91 HI. App. 309. Missouri. Boothe v. Loy, 83 Mo. App. 601. Nebraska. McAleer v. State, 46 Neb. 116; Bowie v. Spaids, 26 Neb. 635; Nelson v. Johansen, 18 Neb. 180, 53 Am. St. Eep. 806. West Virginia. Ward v. Ward, 47 W. Va. 766. An instruction which on an as- sumed hypothesis directs a verdict for the plaintiff to be free from crit- icism should contain all the ingredi- ents essential to the right to a recovery under the pleadings and evidence. Percell v. Metropolitan St. By. Co., 126 Mo. App. 43. When a verdict for either party is hypothesized upon the finding by the jury of a certain state of facts, it is essential that the jury shall find all the facts to exist as hypothesized in the charge, in order to truthfully rest their verdict on such charge. Tennessee Coal, Iron & Bailroad Co. v. Barker; 6 Ala. App. 413. When an . instruction undertakes to cover the whole case and author- izes a finding for one party or the other, according as the jury may determine certain facts, it is error to omit any material issue, and, such error is not cured by another instruction properly submitting the omitted issue: Illinois. McNulta v. Jenkins, 91 111. App. 309; Grieb v. Caraker, 57 111. App. 678. Missouri. Desnoyers Shoe Co. v. Lisman & Bamsey, 85 Mo. App. 340; § 15] Genebal Requisites. 27 and applicable may be given in separate charges. 14 So, also, exceptions to a general rule of law may be given in paragraphs separated from the one limited. 15 It is not improper for the court, when it lays down a general rule, to notice exceptions to it, or such circum- stances as will prevent its operation; 16 but usually, if a party desires that the exceptions should be stated in the instruction, he should ask the court to state them. 17 How- ever, it has been held in one case that if it was manifest that the jury erred for want of an instruction stating qualifications of a general rule, the judgment should be reversed. 18 Also where the court assumes to state the excep- tions to a general rule, and omits an important exception to which the evidence is applicable, the charge is erroneous, and a ground for reversal. 19 § 15. Length and number of instructions. Instructions should be as few and short and pointed as may be consistent with the object of giving clear ideas to the jury of the main points of law governing the, case as applied to the facts. 20 State v. Davies, 80 Mo. App. 239; California. People v. Ah Fung, Hohstadt v. Daggs, 50 Mo. App. 17 Cal. 377; People v. Gibson, 17 Cal. 240. 283. Virginia. Norfolk & W. E. Oo. Iowa. Murphy v. Chicago, E. I. v. Mann, 99 Va. 180. & P. E. Co., 38 Iowa 539. West Virginia. MeVey v. St. Clair Nebraska. Parrish v. State, 14 Co., 49 W. Va. 412. Neb. 60. 14 — See § 13, ante. Where the controlling facts and 15 — International & G. N. Ey. Co. circumstances are few and two or v. Brazzil, 78 Tex. 314. three instructions limited and di- 16— Van Valkenburg v. Huff, 1 rected to the material questions pre- Nev. 142. sented are ample to properly submit 17— Wells v. Morrison, 91 Ind. 51; the case to the jury, it is unneces- White v. Thomas, 12 Ohio St. 317. sary to multiply the instructions. 18— White v. Thomas, 12 Ohio St. Southern E. Co. v. Hansbrough's 317. Adm'x, 107 Va. 733. 19— -Wells v. Morrison, 91 Ind. 51. It is preferable that the instruc- 20 — Arkansas. Hanger v. Evins, tions be few in number, plain and 38 Ark. 338. forcible, and so drafted that there 28 Instructions to Juries. [§15 The practice of requesting long and numerous instruc- tions, or giving them, is universally condemned as a repre- hensible one, 21 because it tends to convey the impression that the court is instructing in favor of one party, 22 and also because it tends to confuse the jury 23 and introduce can be no doubt as to their mean- ing. Talbot's Ex'r v. Mearns, 21 Mo. 427. 21 — Arkansas. Haney v. Caldwell, 43 Ark. 184; Hanger v. Evins, 38 Ark. 334; Sweeney v. State, 35 Ark. 585. . Illinois. Brant v. Gallup, 111 111. 487, 53 Am. Eep. 638; Adams v. Smith, 58 111. 418; Roe v. Taylor, 45 111. 485; Chicago & A. R. Co. v. Kelly, 25 111. App. 19. Kentucky. Steamboat Blue Wing v. Buckner, 12 B. Mon. 246. Maryland. Cumberland Coal & Iron Co. v. Scally, 27 Md. 603. Mississippi. Mabry v. State, 71 Miss. 716;. Ingram v. State, 62 Miss. 142; Clarke v. Edwards, 44 Miss. 778. Missouri. Crawshaw v. Sumner, 56 Mo. 521; State v. Mix, 15 Mo. 159; Doan v. St. Louis, K. & N. W. By. Co., 43 Mo. App. 450; Flynn v. St. Louis & S. E. Ry. Co., 43 Mo. App. 424. Nebraska. Parrish v. State, 14 Neb. 62. Nevada. State v. Ward, 19 Nev. 297, 10 Pac. 133. Ohio. Mutual Ben. Life Ins. Co. v. French, 2 Cin. R. 321. The practice of submitting a large number of instructions is vicious. Casey v. J. W. Reedy Elevator Mfg. Co., 166 111. App. 595. Courts are very severe in their strictures upon instructions which are drawn out to a great length, and are intended toi convey an argu- ment. Roe v. Taylor, 45 111. 485; Merritt v. Merritt, 20 111. 65. 22— See §17, "Repetition," and ch. XIV, §152, post, "unduly em- phasizing matters." The giving of a large number of instructions is apt, to impress the jury that the court is instructing in favor of the party in whose favor they are given. Bartholomew v. Illinois Val. By. Co., 154 111. App. 512. 23— The practice of requesting an unnecessarily large number of in- structions is . not approved, as it tends to create the risk of error, to confuse and mislead the jury and imposes upon the reviewing court an unnecessary burden. Graey v. Atlantic Coast Line R. Co., 51 Fla. 651. The giving of a great number of instructions does not enlighten the minds of the jury on the issues sub- mitted to them, but rather tends to introduce confusion: Arkansas. Haney v. Caldwell, 43 Ark. 184; Hanger v. Evins, 38 Ark. 338. Illinois. Rockford Ins. Co. v. Nelson, 75 111. 548; Adams v. Smith, 58 111. 418; Chicago & A. R. Co. v. Kelly, 25 111. App. 19; Citizens' Gas- light & Heating Co. v. O'Brien, 19 111. App. 234. Missouri. State v. Ott, 49 Mo. 326; Norton v. St. Louis & H. Ry. Co., 40 Mo. App. 646; Desberger v. Harrington, 28 Mo. App. 636. §15] General Requisites. 29 error into the record. 24 A few short instructions embody- ing the law of the case will always be better understood and will have more effect upon the triers of fact than a long list of instructions loaded with words generally so involved that it tends to confuse rather than to conduct the jury to a proper conclusion. 25 However, it has been held that a number of clear, concise instructions is preferable to one long complicated charge. 26 Whether the giving of a large number of instructions constitutes error warranting reversal depends upon the facts of the case and whether the jury were misled. 27 As has been noted in a previous section, exceptions and quali- fications of general rules may be given in separate charges, 28 and it has been held that the giving of three separate charges was not reversible error, though the facts embraced 24 — The almost invariable effect of a multitude of instructions is to introduce error into the record, and to confuse rather than enlighten the minds' of the jury. Adams v. Smith, 58 111. 418; Deering v. Collins, 38 Mo. App. 73. In one ease -it was said that long and numerous requests for instruc- tions were generally made with the real if not avowed purpose of get- ting error into the record, and en- tangling the court into some tech- nical contradiction that might be used in a higher court. Citizens' Gaslight & Heating Co. v. O'Brien, 19 111. App. 234. 25— State v. Floyd, 15 Mo. 355; State v. Mix, 15 Mo. 159; State v. Ward, 19 Nev. 297, 10 Pac. 133. 26 — Chicago City By. Co. v, San- dusky, 198 111. 400, aff'g 99 111. App. 164. 27 — The failure to use as concise and perspicuous language as possible is not error if the jury are not mis- led. Eenner v. Thornburg, 111 Iowa 515. In an action by a steamship com- pany to recover over sums which it was required to pay in settlement of damages for injuries to employees, the giving of forty instructions was not error sufficient to reverse the judgment, although the law could have been properly presented to the jury in less than half of that num- ber. Alaska S. S. Co. v. Pacific Coast Gypsum Co., 78 Wash. 247, 138 Pac. 875. The giving of instructions which, when printed, covered nine and one- half pages, held ground for reversal, as the necessary effect was not to instruct but to confuse and mislead, and make the verdict mere guess- work. Sidway v. Missouri Land & ■Live Stock Co., 163 Mo. 342. The giving of thirty-nine instruc- tions in a personal injury case held prejudicial. Kravitz v. Chicago City Ey. Co., 174 111. App. 182. 28— See § 14, ante. 30 Insteuctions to Juries. [§15 in such, charges could have been grouped disjunctively in one charge, where each fact stated would have constituted a proper basis for the jury's verdict. 29 § 16. Requests for long and numerous instructions. The mere fact that long and numerous instructions are requested does not authorize the court to leave the jury uninstructed, 30 but in such case the court may refuse the requested charges and give instructions of its own, 31 which 29 — Sanders v. St. Louis South- western By. Co. of Texas, — Tex. Civ. App. — , 135 S. W. 718. 30 — Andrews v. Eunyon, 65 Cal. 629; Chicago West Division Ey. Co. v. Haviland, 12 111. App. 561; Lowry v. Beckner, 5 B. Mon. (Ky.) 41; Mabry v. State, 71 Miss. 716. The practice of refusing to give instructions, or even to read them, because they are unnecessarily lengthy and numerous would be a most dangerous one, and ought not to receive the sanction of an appel- late tribunal. McCaleb v. Smith, 22 Iowa 244. In Missouri there are many cases containing expressions from which it might be inferred that the court would be justified in refusing to give any instructions when the requests for instructions are too lengthy and numerous. An examination of these decisions shows, however, that the jury were nevertheless sufficiently instructed on all the points neces- sary to a proper determination of the case. Doan v. St. Louis, K. & N. W. Ey. Co., 43 Mo. App. 450} Norton v. St. Louis & H. Ey. Co., 40 Mo. App. 642; McAllister v. Barnes, 35 Mo. App. 668; Kinney v. City of Springfield, 35 Mo. App. 97; City of Hannibal v. Bichards, 35 Mo. App. 15; Eenshaw v.- Fire- man's Ins. Co., 33 Mo. App. 394; Desberger v. Harrington, 28 Mo. App. 636. 31 — When instructions asked are too lengthy and numerous, the court may properly refuse the requested instructions and give instructions of its own: Arkansas. Hanger v. Evins, 38 Ark. 338. Illinois. Citizens Gaslight & Heating Co. v. O'Brien, 19 111. App. 231; Chicago West Division Ey. Co. v. Haviland, 12 111. App. 561. Kentucky. Lowry v. Beckner, 5 B. Mon. 41. Mississippi. Moriarty v. State, 62 Miss. 661. • Missouri. Crawshaw v. Sumner, 56 Mo. 517j State v. Ott, 49 Mo. 326; Flynn v. St. Louis & S. F. Ey. Co., 43 Mo. App. 424; Gelvin v. Kansas City, St. J. & C. B. Ey. Co., 21 Mo. App. 273. "The remedy for this evil is for the several district judges to take the 'lengthy and numerous instruc- tions' asked by counsel, and embody the law contained in them, and ap- plicable to the case, in a concise, perspicuous charge." McCaleb v. Smith, 22 Iowa 244. §17] General Requisites. 31 contain the same principles of law, 32 or the court may give as many of the charges as the party is entitled to. 33 It is also proper for the court to limit the number of instructions. 34 § 17. Repetition. In a previous section it was stated that it was improper to give numerous instructions because it tended to convey the impression that the court was instructing in favor of one party. 35 A like objection applies to the continual repetition of facts or propositions in the instructions. 36 Accordingly, it is held that it is not proper to repeat the 32 — All the principles of law em- braced in the instructions asked which should be given must be em- braced in the instructions given by the court. Lowry v. Beckner, 5 B. Mon. (Ky.) 41. 33 — When the instructions asked are too numerous, the court may give as many of them as the party asking them is reasonably entitled to. Dunn v. People, 109 111. 635; Chicago West Division Ky. Co. v. Haviland, 12 111. App. 561; Mabry v. State, 71 Miss. 716. 34 — Courts have just as much right to limit the instructions to a proper number as they have to con- fine argument within the proper limit. Mabry v. State, 71 Miss. 716. "The law designs that instruc- tions shall be so accurate and appro- priate as to aid the jury in reaching a proper verdict. It was not de- signed that a party, by asking an unreasonable number, might compel the court either to pass upon them without due consideration, or sus- pend the trial until such considera- tion could be had. To prevent abuse of this right, and perversion of the law, the court may, in its discretion, place a limit upon the number it will consider, as it may upon the number -and length of addresses to the jury, and upon the number of witnesses to be heard, and the ex- tent of their examination upon each branch of the case, and as it may, in general, make such rules and lim- itations as are necessary to • the proper and orderly dispatch of busi- ness. What that limit shall be must depend upon circumstances. It should not be unreasonable nor with- out due notice. We cannot say the discretion was improperly exercised in the present instance." Chicago & A. B. Co. v. Kelly, 25 111. App. 17. 35 — See § 15, ante. 36— See §152, "Unduly emphasiz- ing matters," post. 32 Instbuctions to Jtjbies. [§17 same proposition over and over, 37 and when a proper instruction is given, it is not necessary to repeat it. 38 Such repetition will warrant reversal when issues or phrases of the law are made unduly prominent. 39 It has been Held, however, that an instruction applying a principle of law to the facts as found is not a repetition of another instruction announcing the same principle in the abstract. 40 To avoid repetition, it is proper to refer to other instruc- tions which are given. 41 § 18. Argumentative instructions. As a general rule the giving of argumentative instruc- tions is considered improper. The charge should consist of concise propositions of law applicable to the facts as 37 — Grace & Hyde Co. v. Strong, 224 111. 630, aff'g 127 111. App. 336; Nelson v. Chicago City Ry. Co., 163 HI. App. 98. 38 — On a. prosecution for unlaw- fully carrying a pistol, where the court instructed that if it was broken and could not be fired the defendant should be acquitted, it was not necessary to repeat such charge. Easberry v. State, — Tex. Cr. App. — , 160 S. W. 682. 39 — The fact that the instructions contain repeated statements of the same rule of law clothed in some- what different lzpiguage does not warrant a reversal, unless the repeti- tions are of such a nature as to emphasize and make some one phase of the law unduly prominent to the ^njury of one of the parties. Alaska S. S. Co. v. Pacific Coast Gypsum Co., 78 Wash. 247, 138 Pac. 875. Repeated reference to issues to be settled by the jury, when persisted in to such degree as toi create the impression that such issues are con- trolling, will constitute reversible error. Cook v. Urban, — Tex. Civ. App. — , 167 S. W. 251. Where the court, inadvertently, instructed the jury at eleven places in the main charge that they must believe "from a preponderance of the evidence ' ' the facts alleged, and in addition repeated the instruction in a separate paragraph at the con- clusion of the charge, the error was probably harmful. Cook v. Urban, — Tex. Civ. App. — , 167 S. W. 251. Repetition of instructions will not reverse where it is not shown that harm has been done. Young v. City of Fairfield, 173 111. App: 311. 40— Mallen v. Waldowski, 203 111. 87, rev'g 101 111. App. 367. 4l — State v. Haines, 160 Mo. 555; McElya v. Hill, 105 Tenn. 319. See Beals v. Cone, 27 Colo. 473, 83 Am. St. Rep. 92, 62 Pac. 948, wherein it was held that the. language used sufficiently indicated that three in- structions were to be taken together in. arriving at the meaning of the court. §19] General Requisites. 33 developed by the evidence, 42 and the instructions should not be drawn out at great length for the purpose of inject- ing into them a condensed argument orv speech. 43 Requested instructions which are argumentative should be refused. 44 § 19. Same — What are argumentative instructions. In an action for libel, the giving of an instruction contain- ing an argumentative discussion by the supreme court of a 42 — Alabama. Fuller v. Gray, 124 Ala. 388. Illinois. Ludwig v. Sager, 84 111. 99; Chapman v. Cawrey, 50 111. 512; Merritt v. Merritt, 20 111. 80. Minnesota. State v. Yates, 99 Minn. 461. It is the duty of the presiding judge to instruct the jury as to the substantial law of the ease and not to select certain features and give argumentative charges in regard to them. Georgia Ey. & Elec. Co. v. Gatlen, — Ga. — , 82 S. E. 888. Contra, Cesure v. State, 1 Tex. App. 19. It is within the sound discretion of the court to give argumentative instructions. Karr v. State, 106 Ala. 1; Bray v. Ely, 105 Ala. 553. 43 — Alabama. Bray v. Ely, 105 Ala. 553. Illinois. Weyrich v. People, 89 111. 90; Keeler v. Stuppe, 86 111. 309; Chicago, B & Q. E. Co. v. Griffin, «8 111. 499; Thompson v. Force, 65 111. 370; Chittenden v. Evans, 48 111. 52; Merrick v. Wallace, 19 111. 486. Michigan. People v. Hull, 86 Mich. 449; People v. Crawford, 48 Mich. 498. Ohio. Bates v*. Benninger, 2 Cin. E. 568; Mutual Ben. Life Ins. Co. v. French, 2 Cin. E. 321. 44 — Alabama. Johnson v. Colvin Blashfield Vol. 1—3 (Ala.), 65 So. 328; Clayton v. State, 185 Ala. 13; Fowler v. State, 170 Ala. 65. Arkansas. Boiling v. State, 54 Ark. 588. California. People v. McNamara, 94 Cal. 509, 29 Pac. 953. Georgia. Miles v. State, 93 Ga. 117, 44 Am. St. Eep. 140; Beck v. State, 76 Ga. 452. Illinois. Jacksonville & St. L. E. Co. v. Wilhite, 209 111. 84; Pyle v. Pyle, 158 111. 289; Dickey v. Ghere, 163 111. App. 641; Schmalfeld v. Peoria & E. Ey. Co., 158 111. App. 335; Eanney v. Chicago & A. E. Co., 158 111. App. 104; Eandall v. Ster, ling, D. & E. Elec. Ey. Co., 158 111. App. 56; Willison v. Dering Coal Co., 156 111. App. 209; Ventriss v. Pana Coal Co., 155 111. App. 152. Massachusetts. W y m a n v. Whicher, 179 Mass. 276. Minnesota. Eeem v. St. Paul City Ey. Co., 82 Minn. 98. Missouri. State v. Orr, 64 Mo. 339; Flannery v. St. Louis, I. M. & S. Ey. Co., 44 Mo. App. 396. Nebraska. Chapman v.- State, 61 Neb. 888. Ohio. Mutual Ben. Life Ins. Co. v. French, 2 Cin. E. 321. Texas. Gulf, C. & S. F. E. Co. v. Farmer, 102 Tex. 235; Kansas City, M. & O. Ey. Co. of Texas v. Tread- 34 Instructions to Juries. [§ 19 question not in the case at all is improper, 45 and a charge that "an accusation of slander is easy to be brought and hard to be defended against, though the defendant be ever so innocent," is mere argument. 46 Also an instruction that "in determining the question as to whether the slanderous words charged were spoken about or concerning the plain- tiff, it is proper for you to consider whether, at this time, when these words were alleged to have been spoken, L. knew the person of the plaintiff or not, and, if he did not know the person of the plaintiff at this time, how could he have referred to her? And how could he have pointed her out as the subject of his accusation?" is argumentative. 47 The following charges have also been held argumenta- tive: That "positive fraud or undue influence is hard to prove, is 1 generally done by proving facts and circumstances to which the jury may look to infer fraud or undue influ- ence;" 48 that contracts are presumed fair, and not unlawful or fraudulent, and that the party who attacks them as fraudulent has the burden of proving the fraud by positive or circumstantial evidence. 49 The following language in an instruction was held bad for a similar reason, ' ' although the well & Wilkison, — Tex. Civ. App. jectionable practice has arisen from — , 164 S. W. 1089; Glover v. Hous- two purposes on the part of those ton Belt & Terminal By. Co., — who adopt it: First, a determina- Tex. Civ. App. — , 163 S. W. 1063; tion to lose the cause before the jury, Bomar v. Munn, — Tex. Civ. App. and, next, to reverse the result.' The — , 158 S. W. 1186. first always succeeds; the other Wisconsin. Wieting v. Town of rarely." Bates v. Benninger, 2 Cin. Millston, 77 Wis. 523. R. (Ohio) 568. If a requested instruction partakes 45 — Davis v. Hearst, 160 Cal. 143, of the nature of an argument, it is 116 Pac. 530. not error to refuse it. The practice 46 — McLaughlin v. Beyers, 177 of fighting battles over again in the Ala. 672. instructions needs no encouragement, 47 — Morris v. Lachman, 68 Cal. but should be checked, as tending to 109, 8 Pac. 799. confuse the jury and protract the 48 — Johnson v. Armstrong, 97 Ala. trial. State v. Turner, 19 Iowa 149. 731. In speaking of requests for in- 49 — Underwood v. Jordan, — Tex. structions subject to this vice; it Civ. App. — , 166 S. W. 88. was said: "It seems as if this ob- § 19] General Bequisites. 35 presumption is that the written request was received * * * if it was delivered to the mail, * * * that presump- tion is rebutted by the evidence of the defendants that they did not receive the request, unless the jury shall refuse to believe that evidence," and, "if the defendants have sworn that they did not receive a written request * * * the fact that such a request * * * was placed in the post office or mail * * * is not of itself sufficient to show that the defendants did receive it, unless the jury be- lieve that what they have so sworn to is not worthy of credit." 50 The following excerpts further illustrate the defect, "if two witnesses testify about a transaction, and one of the said witnesses was immediately at the scene of the trans- action, and the other witness was some distance off, then the jury may look to this in determining which witness they will believe;" B1 "that defendant is authorized, under the statute, to testify in his own behalf, and the jury have a right to give full credit to his statements;" 52 that "when a plaintiff comes into court and undertakes to sustain his case by oral admissions * * * by bis adversary after' the lawsuit has been commenced, such testimony should be received with great caution, because of the improbability that a party * * * would make statements prejudicial to his own case, and because of the frailty of memory * * * of witnesses, * * * and their liability to mis- understand what was really said." 53 Similarly instruc- tions that ' ' an opprobrious epithet conveying the idea of a lack of chastity would to a wanton cause no pain, while, applied to a pure and gentle wife, no tongue can tell the anguish, the shame, the sense of humiliation it would bring;" 54 or that the law recognizes that wills are often 50— Steiner v. Ellis (Ala.), 7 So. 52— Horn v. State, 102 Ala. 144. 803. ' 53— Kiddle v. Webb, 110 Ala. 599. 51 — Jones v. Alabama Mineral E. 54 — Hanna v. Hanna, 3 Tex. Civ. Co., 107 Ala. 400. App. 51. 36 Instkuotions to Jueies. [§ 19 made in extremis and when the bodily powers are broken and mental faculties enfeebled, are argumentative. 55 In actions for personal injuries, it has been held argu- mentative to give charges, in substance, as follows: That the conduct of children of tender years is not to be meas- ured by the same standard as that of persons of mature years, and stating that "this is a reasonable and humane rule and through all the branches of the law, -whether con- tract or tort, there runs a line distinguishing children of years too few to have judgment of discretion from those old enough to possess and exercise these faculties. This is a doctrine taught by every man's experience and sanc- tioned by the law ; 5G that, ' ' in this case, there is no com- plaint that any of the crew on the train were incompetent or unfit for the positions they occupied; and the jury can- not consider any testimony, or any arguments of counsel, bearing on that matter. ' ' B7 Also, in an action for injuries caused by a defective sidewalk, an instruction on the sub- ject of contributory negligence, that the jury should take into consideration "the familiarity of the plaintiff with the sidewalk, and the time of day and condition of the weather at the time he was injured, ' ' is argumentative. 58 In criminal cases, the following instructions have been held argumentative: That "the law is as much vindicated by the acquittal of an innocent person as by the conviction of a guilty one;" 59 that "it is as much their [the jury's] duty as jurors to acquit the defendant, if from the evidence they have a reasonable doubt of his guilt, as it would be to convict him if they believe, to a moral certainty, that he is guilty;" 60 that "it is the duty of each juror to decide 55 — Huffman v. Graves, 245 111. 58 — City of Bonham v. Crider 440. (Tex. Civ. App.), 27 S. W. 419. 56— Chicago & E. I. B. Co. v. 59— Parker v. State, 165 Ala. 1. Mitchell, — Ind. App. — , 105 N. E. 60— Cooper v. State, 88 Ala. 107. 396. 57 — Georgia Pac. Ry. Co. v. Propst, 90 Ala. 1. § 20] General Requisites. 37 the issue for himself, and if there is any juror who has a reasonable doubt of the guilt of defendant, it is his duty to stand by his convictions, and he should not yield simply because every other juror may disagree with him;" 61 that "the jury may look upon the affidavit upon which the war- rant for defendant's arrest was issued, which showed that the prosecutor came to town and swore to it the second day after the alleged assault, as throwing light on whether or not they believed he was struck with an ax, as alleged." 62 An instruction containing a general dissertation upon the rights of the defendants to life and liberty, upon the duty of jurors and upon the importance of convicting the guilty, and stating the method by which the jurors were chosen, the reason for which they were impaneled and that they were selected as intelligent and qualified jurors, has also been held argumentative. 63 And on .a trial for keeping intoxicating liquors, an instruction that "there is no proof that a partnership existed between defendant and E, and the fact that E had been charged with selling whisky should not be construed against defendant," was properly refused as argumentative and abstract. 64 § 20. Same — Argumentativeness as ground for reversal. Ordinarily, the giving of argumentative instructions is not error sufficient to warrant the reversal of a judgment, 65 unless the party complaining is injured, 66 although there are decisions to the contrary. 67 61— Phillips v. State, 11 Ala. App. v. State, 106 Ala. 1; Bray v. Ely, 15. 105 Ala. 553; Hurley v. State, 29 62— Little v. State, 89 Ala. 99. Ark. 17. 63 — People v. Davidson, 240 111. 66 — The giving of argumentative 191. instructions is not ground for re- 64 — Kinsaul v. State, 8 Ala. App. versal unless they were likely to in- 405. jure the party complaining. Payne 65 — If 'the instructions, although v. Crawford, 102 Ala. 388; Trufant argumentative, correctly state the v. White, 99 Ala. 526; McQueen v. law, when taken as a whole, the State, 94 Ala. 50; Jones v. State, 65 judgment should not be reversed. Ga. 621. Baldwin v. State, 111 Ala. 11; Karr 67 — Judgment reversed because of 38 Instructions to Jueies. [§20 There are other decisions holding that the judgment should not be reversed where the instructions are argu- mentative, if such charges state correct propositions of law and the party aggrieved did not ask that the erroneous charges be modified or qualified. 68 § 21. Contradictory instructions. Instructions should be harmonious and consistent, 09 and it is improper to give contradictory instructions upon a vital point. 70 argumentative instructions.' Gulf, C. & S. F. Ey. Co. v. Harriett, 80 Tex. 73; Lee v. Yandell, 69 Tex. 34; Chisum v. Chesnutt (Tex. Civ. App.), 36 S. W : 760. Judgments reversed • because of argumentative instructions coupled with other errors. Ludwig v. Sager, 84 111. 99; Young v. Merkel, 163 Pa. 513; Cowie v. City of Seattle, 22 Wash. 659, 62 Pac. 121. 68— Wilhoyte v. Udell (Ala.), 9 So. 550; Birmingham Fire Brick Works v. Allen, 86 Ala. 185. 69 — Illinois Match Co. v. Chicago, B. I. & P. Ey. Co., 250 111. 396. Instructions as a whole must be consistent, and not misleading. Ho- ben v. Burlington & M. Eiver E. Co,!, 20 Iowa 562. 70— Gilmore v. Fuller, 198 111. 130, 60 L. E. A. 286; Pendleton v. Chi- cago City Ey. Co., 120 111. App. 405. It is erroneous to give instructions which are contradictory and irrecon- cilable. California. Lemasters v. South- ern Pac. Co., 131 Cal. 105, 63 Pac. 128. Illinois. McLean County Bank v. Mitchell, 88 111. 52; Quinn v. Don- ovan, 85 111. 196. Indiana. Blume v. State, 154 Ind. 343; Anderson v. Oscamp (Ind. App.), 35 N. E. 707. Iowa. Pumphrey v. Walker, 75 Iowa 408. Michigan. Comstock v. Smith, 26 Mich. 306. Mississippi. Cunningham v. State, 56 Miss. 269, 31 Am. Eep. 360n; Chapman v. Copeland, 55 Miss. 476. Missouri. Bluedorn v. Missouri Pac. Ey. Co., 108, Mo. 439, 32 Am. St. Eep. 615; Seymour v. Seymour, 67 Mo. 303; Henschen v. O'Bannon, 56 Mo. 289; Straat v. Hayward, 37 Mo. App. 585. Montana. Kelley v. Cable Co., 7 Mont. 70, 14 Pac. 633. Texas. Kraus v. Haas, 6 Tex. Civ. App. 665. . Utah. Konold v. Eio Grande Western Ey. Co., 21 Utah 379, 81 Am. St. Eep. 693, 60 Pac. 1021. West Virginia. McMechen v. Mc- Mechen, 17 W. Va. 683, 41 Am. Eep. 682n; Baltimore & O. E. Co. v. Laf- ferty, 2 W. Va. 104. United States. Deserant'v. Ceril- los Coal E. Co., 178 U. S. 409, 44 L. Ed. 1127, rev >g 9 N. M. 495, 55 Pac. 290. Inconsistent charges that affirma- tively mislead the jury should not §21] General Requisites. 39 - The objections to such charges are that they tend to mis- lead the jury, 71 render it impossible to determine what rule the jury adopted in giving their verdict, 72 and leave the jury free to follow either instruction, as their personal wishes or private feelings may dictate. 73 > "It is the right of every party to insist that the law ap- plicable to his case shall be fairly and distinctly stated in be given. Florida East Coast R. Co. v. Jones, 66 Fla. 51. 71— McCole v. Loehr, 79 Ind. 430. "A jury cannot be required to harmonize conflicting charges. ' ' Trinity & B. Val. Ry. Co. v. Luns- ford, — Tex. Civ. App. — , 160 S. W. 677. Instructions should be so framed that they will not only state the law correctly, but will not, by rea- son of even apparent contradictions and inconsistencies, confuse and mis- lead the jury. Hoben v. Burlington & M. River R. Co., 20 Iowa 562. Where the instructions set up for the jury contradictory rules for their guidance, which are unexplained, and following either of which would or might lead to different results, then the instructions are inherently defective and calculated to confuse and mislead the jury. Pendleton St. R. Co. v. Stallmann, 22 Ohio St. 1. 72 — Where it is sought to review the verdict, it is impossible to tell which of the inconsistent instruc- tions the jury adopted and followed. One of such instructions must be erroneous, and non constat they may have followed that one. Arkansas. St. LOuis, I. M. & S. Ry. Co. v. Beecher,'65 Ark. 64.' California. Sappenfield v. Main St. & A. P. R. Co., 91 Cal. 48, 27 Pac. 590; Haight v. Vallet, 89 Cal. 245, 23 Am. St. Rep. 465, 26 Pac. 897; Black v. Sprague, 54 Cal. 266; Chidester v. Consolidated People's Ditch Co., 53 Cal. 56; McCreery v. Everding, 44 Cal. 246; Brown v. McAllister, 39 Cal. 573; People v. Campbell, 30 Cal. 312. Colorado. City of Boulder v. Niles, 9 Colo. 415, 12 Pac. 632; Clare v. People, 9 Colo. 122, 10 Pac. 799. Illinois. Wilbur v. Wilbur, 129 111. 392; Quinn v. Donovan, 85 111. 196; Leyenberger v. Paul, 12 111. App. 635. Indiana. Fowler v." Wallace, 131 Ind. 347; McCole v. Loehr, 79 Ind. 430. Iowa. State v. Keasling, 74 Iowa 528; Hawes v. Burlington, C. R. & N. Ry. Co., 64 Iowa 315; Conway v. Illinois Cent. R. Co., 50 Iowa 465. Missouri. State v. Herrell, 97 Mo. 105, 10 Am. St. Rep. 289; Henschen v. O'Bannon, 56 Mo. 289. Montana. Keene v. Welsh, 8 Mont. 305, 21 Pac. 25. Nebraska. School Dist. of Chad- ron v. Foster, 31 Neb. 501; Ballard v. State, 19 Neb. 610; Wasson v. Palmer, 13 Neb. 376. Oregon. Kelly v. Lewis Inv. Co., 66 Ore. 1, Ann. Cas. 1915 B 568n, 133 Pac. 826. West Virginia. McMechen v. Mc- Mechen, 17 W. Va. 683, 41 Am. Rep. 682n. 73— Baker v. Ashe, 80 Tex. 356. 40 Instructions to Juries. [§ 21 the instructions, and it is not sufficient that a part of the instructions contain a correct exposition of the law, if it is incorrectly announced in others. " "' * The refusal of contradictory instructions is proper, whether they be contradictory to those previously granted at the same party 's request, or to those given at the request of the opposite party. 75 In one case it was held that where an instruction contains two Wholly inconsistent propositions and is well calculated to mislead the jury, no special objection is required to pre- sent the error because it is not a mere defect in verbiage and form, but one of substance to which a general objection will be sufficient. 76 § 22. Same— Instructions held bad as being contradictory. An instruction stating that the jury should find the mar- ket value of lumber at the nearest market "where same could be obtained, ' ' and then following with the words ' ' or the market where the same could be obtained upon the most advantageous terms," is contradictory and misleading. 77 And where two instructions are given, one declaring that knowledge of the plaintiff, at the time of the purchase, of the intent of the party from whom he bought to defraud his creditors would render the sale void, and the other declar- ing that the plaintiff ought to recover unless he bought the 74 — Chicago, B. & Q. E. Co. v. inconsistent with those given at the Payne, 49 111. 499. request of the plaintiff, upon the 75 — Cumberland Coal & Iron Co. ground that each party is entitled v. Tilghman, 13 Md. 74; St. Louis, to instructions presenting the law K. & N. W. E. Co. v. Knapp, Stout applicable to the evidence support- & Co. Company, 160 Mo. 396; Straat ing his theory of the case. It seems v. Hay ward, 37 Mo. App. 585; that there should be no difficulty in Baltimore & O. E. Co. v. Lafferty, doing this without giving incon- 2 W. Va. 104. sistent and contradictory instruc- But see Fessenden v. Doane, 89 tions." 111. App. 229, aff'd 188 111. 228, 76— St. Louis, I. M. & S. E. Co. wherein it was held not to be v. Bright, 109 Ark. 4. error that the instructions given at 77 — Gourley v. American Hard- the request of the defendant were wood Lumber Co., 185 Mo. App. 360. § 22] (xenebal Requisites. 41 goods with the intent to defraud the creditors of the vendor of the goods, such instructions are clearly repugnant. 78 In an action for an indebtedness due for certain cotton sold to a defendant where an instruction was given that the plaintiff must prove the allegations of his petition by a pre- ponderance of the evidence, to recover, and another instruc- tion charged that the jury should find for plaintiff if the defendant did not establish his plea of estoppel, it could not be determined on which theory the verdict was ren- dered, and the charges were erroneous. 79 So, in an action for malicious prosecution, an instruction that, if one, actu- ated by a real sincere design to bring about a reformation of manners, in pursuing that design, wilfully inflicts a wrong not warranted by law, such wrong is malicious, is contradictory. In other words, the instruction says that if one designs to do right and designs to do wrong his act is malicious. 80 In a contest over a strip of land between adjoining land- owners, growing out of a dispute as to the true line dividing the two tracts, in which the defendant relied upon the statute of limitations, the court, at the request of plaintiff, instructed the jury that, if defendant occupied the land up to his fence, because he believed it to be the true line, with- out intent to claim to the fence if it should not be the line, then an element of adverse possession was wanting. This instruction was heldcontradictory. 81 An instruction that it was not negligence as a matter of law for a person to go upon a street car track without look- ing and listening, but concluding with the proposition that the law requires that such person must use due care and that ordinary care means that he must look and listen, etc., is self-contradictory and is properly refused. 82 78 — Frederick v. Allgaier, 88 Mo. 80— Whitfield v. Westbrook, 40 598. Miss. 311. 79— Weld-Neville Cotton Co. v. 81— Grim v. Murphy, 110 111. 271. Lewis, — Tex. Civ. App — , 163 82 — Roanoke Ey. & Elec. Co. v. S. W. 667. Carroll, 112 Va. 598. 42 Instructions' to Juries. [ § 22 In an action for injuries to a passenger carried beyond her destination and compelled to walk back to station, a part of an instruction stating tbat she had a right to walk back without assuming the risk incident to taking such walk was wholly inconsistent with another part of such charge leaving it to the jury to determine whether the ' ' cir- cumstances justified her in electing to walk. ' ' 83 In an action for being ejected from a sleeping car, an instruction that blankets were not baggage because they were being taken home for use as portieres was inconsistent with another instruction leaving the question to the jury along with a question as to whether .the bundles were bulky. 84 In an action for the death of a person who was killed at a railroad crossing, an instruction that the burden was upon the defendant to prove by a preponderance of the evidence the facts submitted as material to its defense, following a charge that the burden was on the plaintiff to prove by a preponderance of evidence the facts material to the right to recover, was erroneous as being contradictory and as leading the jury to believe that .the burden was on the defendant to establish the negative of the issue of negli- gence. 85 Where the court charged that the defendant was not lia- ble for an accident causing death, unless its negligence was wilful and wanton, and also charged that if the defendant failed to keep a proper lookout in order to prevent a col- lision, and by reason of such negligence the deceased was killed, the verdict should be for the plaintiff, the two in- structions were directly contradictory, and therefore erro- neous. 86 An instruction that it was a servant's duty to inspect the 83— St. Louis, I. M. & S. R. Co. v. Dozier, — Tex. Civ. App. — , 162 v. Bright, 109 Ark. 4. S. W. 1019. 84 — Pullman Co. v. Custer, — Tex. 86 — Lemasters v. Southern Pac. Civ. App. — , 140 S. W. 847. Co., 131 Cal. 105, 63 Pac. 128. 85— Galveston, H. & S. A. Ry. Co. § 22] General Eequisites. 43 roof of his working place was erroneous, where the evidence as to such duty was conflicting and where another instruc- tion directly stated that it was the master's duty to inspect the roof of the servant's working place. 87 In an action for injuries to a servant caused by the fall of an elevator, where one instruction submitted the question of whether the plaintiff assumed the risk of the elevator cable being defective, and another instruction told the jury that if the defendant was negligent and the injury there- from resulted without fault on the plaintiff's part, he was entitled to recover unless there had been a settlement, the instructions were erroneous as contradictory. 88 An instruction, in an action for personal injuries, that in assessing damages, the jury should consider the interest which the sum awarded would produce annually, is incon- sistent with an instruction that plaintiff could not be awarded, as damages, a sum that would, by way of interest, earn an equivalent to plaintiff's annual losses. 89 On a prosecution for selling intoxicating liquors, an instruction directing a verdict of guilty if a sale was made at any date within a year prior to filing the information, and an instruction directing an acquittal unless the sale was made on one certain date as testified to by a witness for the state, were erroneous as contradictory. 90 In such a prosecution, an instruction that though the jury believe that one drank whisky in defendant's store, as charged in the indictment, yet, if they believe that such per- son drank the whisky without the knowledge or consent of the defendant, they would find the defendant not guilty, is absurd, where the indictment charges that the liquor was drunk with the knowledge and consent of defendant. 91 87— Eagle Coal Co. v. Patrick's 90— State v. Fellers, 140 Mo. App. Adm'r, 161 Ky. 333. 723. 88 — Brusseau v. Lower Briek Co., 91 — May v. State, 35 Tex. 650. 133 Iowa 245. 89— Kamsey v. National Contract- ing Co., 49 App. Div. (N. Y.) 11. 44 Instructions to Juries. [§22 An instruction that "it is a rule universally observed that men in business, social, and ordinary affairs of life, as well as in the commission of crime, act from motive, ' ' and that if the jury believe that the defendant had no motive for the commission of the crime, it is for them to say whether the absence of motive ' ' is not a persuasive circumstance in favor of the defendant's plea of unsoundness of mind," is self -contradictory . 9 2 § 23. Same — Instructions held not contradictory. Instructions based upon two different allegations of fact are not contradictory, it appearing that the jury could, under the proof, have consistently found for the defendant, though not for the plaintiff under both aspects presented by the instructions. 93 In an action on a promissory note, there was no conflict between an instruction placing the burden of probf on defendants to establish payment as pleaded, and one telling the jury that a receipt was prima facie evidence of pay- ment. 94 In an action to recover for goods sold to an infant, an instruction that says, when a person arrives at mature age and is of sound mind, he is presumed to know the law, does not contradict an instruction that an infant, to ratify his contract after he becomes of ,age, must know that he is not bound by an alleged contract made during infancy. 95 In an action of replevin, where an instruction made essen- tial to a verdict for plaintiff the finding of a purchase in good faith, and such requirement was emphasized in the next instruction in which such change of possession as would afford third parties notice of change of ownership was declared essential to a sale in good faith, there was no inconsistency. 96 92— Blurae v. State, 154 Ind. 343. 95 — Ogborn v. Hoffman, 52 Ind. 93 — Western U. Tel. Co. v. Reed, 439. 158 Ky. 552. 96— Sheeler v. Porter Hardware 94 — Richards v. Osborne, — Tex. Co., ]62 Iowa 6. Civ. App. — , 164 S. W. 392. § 23] Genekal Requisites. 45 Where a cause of action alleged involves a violation of an ordinance, an instruction that such ordinance ' ' existed at the time of the accident," and also that "this ordinance would not bind the defendant * # * unless it had been published, 1 ' ' ds not conflicting or misleading, as both stating that the ordinance existed and did not exist. 97 In an action for injuries caused by being struck by an automobile, an instruction that if defendant was running on the left side of the street plaintiff was entitled to recover, was not inconsistent with a charge that defendant might pass around an obstruction in the street to the left side thereof. 98 Where an instruction declared that a railroad was bound to maintain ' ' sufficient light ' ' at its stations and also stated that the company was required to keep its stations "prop- erly lighted," it was not contradictory. 99 In an action for death by wrongful act, an instruction that it was the duty of the deceased to exercise the care and prudence of an ordinarily careful and prudent person of his age (ten years) and intelligence, is not inconsistent with an instruction that if the deceased saw and heard, or by look- ing and listening could have seen and heard, defendant's engine approaching, then the plaintiff could not recover. 1 An instruction authorizing the jury to disregard a release of damages if' obtained by fraud, is not inconsistent with another instruction authorizing a deduction from the dam- ages of the sum paid for release. 2 An instruction on self-defense given by the court is not inconsistent with an instruction on self-defense given at the request of the accused, where the only difference between 97 — Larkin v. Burlington, C. B. 1 — Schmitt v." Missouri Pac. By. & N. By. Co., 91 Iowa 654. Co., 160 Mo. 43. 98 — Clark v. Van Vleck, 135 Iowa 2 — Savage v. Chicago & J. Elee. 194. B. Co., 238 111. 392, aff'g 142 111. 99 — Teale v. Southern Pac. Co., App. 342. 20 Cal. App. 570, 129 Pac. 949. 46 Instructions to Jubies. [§23 them is that one contains a definition of ' ' reasonable doubt ' ' and the other does not. 3 § 24. Same — Incorrect instructions not cured by inconsist- ent correct instructions. Error committed in the giving of an incorrect instruction is not cured or rendered harmless by the giving of a correct instruction on the same subject. Such instructions would be misleading and erroneous, 4 and it would be impossible to say which instruction the jury followed. The only rem- edy for an error of this sort is by an express withdrawal of the erroneous instructions, in addition to the giving of other instructions which are correct. 5 3— State v. Moore, 156 Mo. 204. 4 — Illinois. Kankakee Stone & Lime Co. v. City of Kankakee, 128 111. 173; Wabash, St. L. & P. Ey. Co. v. Shacklet, 105 111. 364, 44 Am. Eep. 791; Illinois Linen Co. v. Hough, 91 111. 63; Counselman v. Collins, 35 111. App. 68. Indiana. Pittsburgh, C. & St. L. By. Co. v. Noftsger, 148 Ind. 101; Heyl v. State, 109 Ind. 589; Mc- Dougal v. State, 88 Ind. 24; Mc- Entire v. Brown, 28 Ind. 347. Iowa. State v. Keasling, 74 Iowa 528. Kentucky. Clay 's Heirs v. Miller, 3 T. B. Mon. 146. Mississippi. Herndon v. Hender- son, 41 Miss. 584; Southern B. Co. v. Kendrick, 40 Miss. 374, 90 Am. Dec. 332; Mississippi Cent. B. Co. v. Miller, 40 Miss. 45. Missouri. Flynn v. Union Bridge Co., 42 Mo. App. 529; George v. Wabash Western Ry. Co., 40 Mo. App. 433; State v. Clevenger, 25 Mo. App. 653; Fink v. Algermissen, 25 Mo. App. 186; Safety Fund Nat. Bank v. Westlake, 21 Mo. App. 565; Welch v. Hannibal & St. J. By. Co., 20 Mo. App. 477. Nebraska. Thompson v. State, 61 Neb. 210, 87 Am. St. Eep. 453! Pennsylvania. Gearing v. Lacher, 146 Pa. 397. Tennessee. Bruce v. Beall, 99 Tenn. 303. Texas. Baker v. Ashe, 80 Tex. 356. Vermont. State v. Fitzgerald, 72 Vt. 142. Wisconsin. Imhoff v. Chicago & M. Ey. Co., 20 Wis. 344. An instruction attempting to cover the whole case but which omits an essential element is erroneous, and such error is not cured by another instruction covering the omitted point. Dobson v. State, 61 Neb. 584. But see Parsons v. State, 61 Neb. 244. 5 — Idaho. Lufkins v. Collins, 2 Idaho 135, 7 Pac. 95. Indiana. Heyl v. State, 109 Ind. 589; McCole v. Loehr, 79 Ind. 432. Missouri. Jones v. Talbot, 4 Mo. 279. Texas. Baker v. Ashe, 80 Tex. 361. §24a] General Bequisites. 47 When an erroneous instruction is withdrawn or corrected, it should be by a qualification referring expressly to it. 8 §24a. Same — Contradictory charges as ground for re- versal. Where a charge is so contradictory as to leave the minds of the jury in an unsettled state, and it cannot be said on what rule of law the verdict is based, the error is of suf- ficient gravity to require a reversal of the judgment. 7 And it has been held that a judgment of conviction will be reversed, even though the appellate court may be satis- fied from the evidence that the jury ought to have found Vermont. State v. Fitzgerald, 72 Vt. 142. Wisconsin. Imhoff v. Chicago & M. Ry. Co., 20 Wis. 344. 6 — Baker v. Ashe, 80 Tex. 356. 7 — California. People v. Elliott, 90 Cal. 586, 27 Pac. 433; Haight v. Vallet, 89 Cal. 245, 23 Am. St. Rep. 465, 26 Pac. 897; People v. Higgins (Cal.), 12 Pae. 301; Harrison v. Spring Valley Hydraulic Gold Co., 65 Cal. 376, 4 Pae. 381; Aguirre v. Alexander, 58 Cal. 21; Black v. Sprague, 54 Cal. 266; Chidester v. Consolidated People's Ditch Co., 53 Cal. 56; In re Cunningham's Estate, 52 Cal. 465; Brown v. McAllister, 39 Cal. 573; Clark v. McElvy, 11 Cal. 154. Colorado. City of Boulder v. Niles, 9 Colo. 415, 12 Pac. 632; City of Denver v. Capelli, 4 Colo. 25, 34 Am. Rep. 62. Idaho. Holt v. Spokane & P. Ry. Co., 3 Idaho 703, 35 Pac. 39. Illinois. Illinois Linen Co. v. Hough, 91 111. 63; City of Litchfield v. Ward, 32 111. App. 392; Knowlton v. Fritz, 5 111. App. 217. Indiana. Wenning v. Teeple, 144 Ind. 189; Summerlot v. Hamilton, 121 Ind. 87; State v. Sutton, 99 Ind. 300; Kirland v. State, 43 Ind. 146, 13 Am. Rep. 386; Somers v. Pumph- rey, 24 Ind. 231; Watts v. Chicago & E. I. R. Co., — Ind. App. — , 104 N. E. 42; Smith v. Rodecap, 5 Ind. App. 78. Iowa. Moore v. Des Moines & Ft. D. Ry. Co., 69 Iowa 491; State v. Shelton, 64 Iowa 333; Hawes v. Burlington, C. R. & N. Ry. Co., 64 Iowa 315; State v. Hartzell, 58 Iowa 520; Vanslyck v. Mills, 34 Iowa 375; Davis v. Strohm, 17 Iowa 421. Kentucky. Hawkins v. Robinson, 3 T. B. Mon. 143. Minnesota. MeCormick v. Kelly, 28 Minn. 135. Mississippi. Solomon v. City Compress Co., 69 Miss. 319. Missouri. Hickman v. Link, 116 Mo. 123; Spillane v. Missouri Pac. Ry. Co., Ill Mo. 555; Otto v. Bent, 48 Mo. 23;Buel v. St. Louis Trans- fer Co., 45 Mo. 562; Wood v. Steam- boat Fleetwood, 19 Mo. 529; Pond v. Wyman, 15 Mo. 175; Allen v. Quercus Lumber Co., 171 Mo. App. 492; Union Bank of Trenton v. First Nat. Bank of Milan, 64 Mo. App. 48 Instructions to Jtjkies. [§24a defendant guilty. 8 The general rule is that the fact that other instructions, to some extent, lay down the law cor- rectly, is not material. It cannot be determined by which instruction the jury was, governed, and the possibility that error may have intervened is enough to warrant a re- versal. 9 It has been said that the rule may not apply 253; Jones v. Chicago, B. & K. C. Ey. Co., 59 Mo. App. 137; Frank v. Grand Tower & G. Ey. Co., 57 Mo. App. 181; Martinowsky v. City of Hannibal, 35 Mo. App. 70; Carder v. Primm, 1 Mo. App. 167. Montana. Keene v. Welsh, 8 Mont. 305, 21 Pao. 25; Kelley v. Cable Co., 7 Mont. 70, 14 Pae. 633; Territory v. Owings, 3 Mont. 137. Nebraska. School Dist. of Chad- ron v. Poster, 31 Neb. 501. New York. Clarke v. Schmidt, 210 N. Y. 211. Pennsylvania. Sellers v. Steven- son, 163 Pa. 262; Wolf v. Wolf, 158 Pa. 621; Selin v. Snyder, 11 Serg. & E. 319. Texas. San Antonio & A. P. By. Co. v. Eobinson, 73 Tex. 277; Gulf, C. & S. F. Ey. Co. v. White, — Tex. Civ. App. — , 32 S. W. 322. Vermont. Bovee v. Town of Dan- ville, 53 Vt. 183. Virginia. Powhatan Lime Co. v. Affleck's Adm'r, 115 Va. 643. Wisconsin. Sears v. Loy, 19 Wis. 96. United States. Bank of Metropo- lis v. New England Bank, 6 How. 212, 12 L. Ed. 409. An instruction is to be considered harmful where it is contradictory of other instructions on a material point. Southern E. Co. v. Hans- brough 's Adm 'x, 107 Va. '733. When contradictory charges are given which may be material, the case will be reversed. Trinity & B. Val. Ey. Co. v. Lunsford, — Tex. Civ. App. — , 160 S. W. 677. Where instructions given at the request of plaintiff and of defend- ant are conflicting, the rendition of a verdict in conformity with either of the instructions necessarily im- plies a disregard of principles pre- scribed by the other, and the court cannot refuse to reverse if the record does not show that no injury resulted from the contradictory instructions. Adams v. Capron, 21 Md. 186, 83 Am. Dec. 566. The giving of contradictory in- structions is reversible error where the substantial rights of the plain- tiff are affected. Eanney v. Lewis, 182 Mo. App. 58. 8 — People v. Valencia, 43 Cal. 552. 9— City of Boulder 'v. Niles, 9 Colo. 415, 12 Pac. 632. But see Nuckolls v. Gaut, 12 Colo. 361, 21 Pac. 41, where it was held that in order for a conflict between instructions to be a ground for re- versal it must appear that such conflict may have injured the party complaining. This decision is not, however, in accord with the cases cited in' sup- port of the proposition hereinbefore stated. In another decision it was said that if two contradictory instruc- tions are given, a new trial will ordinarily be granted, unless it plain- ly appears that the jury hate not §24a] General Requisites. 49 where it is clear to the court that the erroneous instructions did not mislead the jury, 10 but this view is not supported by the weight of authority, and it has been well said in one case that it will not do to hope or conjecture that a false rule will do no evil because a correct one was also given. 11 The rule that a judgment must be reversed where instruc- tions on a material point are contradictory is not an abso- lute and unqualified rule, 12 and if one of the contradictory instructions which is erroneous is in favor of the party complaining, the cause, for obvious reasons, will not be re- versed. 13 Also where an instruction given at the request of a party is erroneous, and is inconsistent with all the other instructions, such party cannot allege error. 14 been misled thereby. Union Pae. Ry. Co. v. Milliken, 8 Kan. 647. 10— Imhoff v. Chicago & M. Ry. Co., 20 Wis. 362. If an improper instruction, given at the request of a party, conflicts with other correct instructions, given by the court of its own motion, but does not mislead the jury, as shown by the fact that the jury find for the other party, under the instructions given by the court on its, own motion, it is no cause for reversal. Farmers' & Traders' Nat. Bank v. Woodell, 38 Ore. 294, 65 Pac. 520, 61 Pac. 837. 11 — Catawissa R. Co. v. Arm- strong, 49 Pa. St. 193. 12— Lobdell v. Hall, 3 Nev. 507. 13 — Williams v. Southern Pac. R. Co., 110 Cal. 457, 42 Pac. 974; Car- roll v. People, 136 111. 456; St. Joseph & D. C. R. Co. v. Grover, 11 Kan. 302. 14 — Reardon v. Missouri Pac. Ry. Co., 114 Mo. 384.' Blashfield Vol. 1—4 CHAPTER V. Fokm of Instkuctions. § 25. Scope of chapter. § 26. Necessity of adhering to well-settled precedents. § 27. Instructions in form of questions. § 28. Style and spirit of instructions. § 29. Arrangement. § 30. Language. § 31. Use of words of statute. § 32. Verbal or technical inaccuracies. § 33. Omissions. 1 34. Abbreviations. § 35. Punctuation. § 36. Brevity and clearness. § 37. Accuracy, directness and certainty. § 38. Ambiguous instructions. § 39. Vague, involved and obscure instructions. § 40. Predicating instructions on belief from evidence. § 41. Necessity of hypothesizing facts. § 25. Scope of chapter. A discussion as to the form of instructions necessarily involves the question whether they should be oral or writ- ten, 1 as well as questions concerning what reference may be made to the pleading and evidence. 2 These matters will be treated in* the following chapters, and the more general matters, such as style and arrange- ment, the words used, and similar questions, are discussed in this chapter. § 26. Necessity of adhering to well-settled precedents. It is the safer and better practice in drafting instructions to use language universally adopted and approved than to 1 — See ch. VI, post, ' ' Necessity of 2 — See chapters VIII, IX, X, et Instructing in Writing." seq., post. (50) §28] Foem of Instructions. 51 undertake to give a new version in more doubtful lan- guage, 3 and on well-known subjects, such as reasonable doubt, it is advisable to follow an approved instruction, not only because it is a safe practice, but because it obviates the necessity of considering instructions on the same sub- ject which are differently worded, on appeal. 4 In general, it is well for the trial judge to adhere strictly to the old and well-settled formulas of the law. Any departure from the beaten track will lead to doubt and un- certainty. 5 § 27. Instructions in form of questions. There is no error in presenting some of the facts in the form of questions. It is well calculated to present to the jury the precise points in controversy. 6 § 28. Style and spirit of instructions. The style and diction of a charge must necessarily be left to the discretion of the trial court, 7 but it is not good prac- tice to underscore portions of an instruction, 8 or to give a charge containing italicized words, 9 or words printed in 3 — Colorado. McQueary v. People, 48 Colo. 214, 21 Ann. Cas. 560, 110 Pac. 210. Missouri. State v. Murray, 91 Mo. 95; State v. Stein, 79 Mo. 330; State v. Kilgore, 70 Mo. 557. Tennessee. Turner v. State, 4 Lea 206; Lawless v. State, 4 Lea 173; Smith v. State, 2 Leg. E. 56. 4 — McQueary v. People, 48 Colo. . 214, 21 Ann. Cas. 560, 110 Pae. 210. 5 — Lawless v. State, 4 Lea (Tenn.), 179. 6— McLain v. Com., 99 Pa. 86. 7 — Kersten v. Great Northern B. Co., 28 N. D. 3. The trial judge is necessarily vested with a large discretion as to the style and form of the charge. Mawich'v. Elsey, 47 Mich. 10; Con- tinental Improvement Co. v. Stead, 95 U. S. 161, '24 L. Ed. 403. 8— Wright v. Brosseau, 73 111. 381. While the practice of underscoring instructions is subject to criticism, and display type or italics should not be employed to call the atten- tion of the jury to any fact which may be contested, the use of display type in merely ordinary and general instructions, which do not involve special facts, will not be cause for reversal. Hagenow v. People, 188 111. 545. 9— Mitchell v. Hindman, 47 111. App. 431, aff'd 150 111. 538. 52 Instbuctions to Jueies. [§28 larger letters than other parts of the charge. 10 A charge is legally sufficient if it is correct in substance and commits fairly to the jury the determination of the disputed facts. 11 So far as practicable the instructions should be given in a concrete form, 12 and the facts "which there is evidence to prove should be grouped together and the jury told the legal effect of such facts, if they are found to exist. This form of an instruction is preferable to one dealing in gen- eralities. 13 In negligence cases, however, it is common practice to preface an instruction with a general statement of the duty of the operator of machinery, etc., to those using it or likely to come in contact therewith, and to follow the same with a specific application of the doctrine to the particular facts in issue. 14 Charges which refer to links and chains in' the testimony are frequently condemned, it being the rule that cases should be tried on facts and not theories. 15 The style and spirit of a charge are not open to criticism by the reviewing court if the charge be correct and not liable to mislead the jury; ie and an instruction which is correct as applied to the merits of the controversy will not be declared erroneous because it was inartificially drawn. 17 10 — Elwood v. Chicago City By. of the jury intelligently to the law Co., 90 111. App. 397. of the ease. Nashville, C. & St. L. E. Charge held properly refused when Co. v. Banks, 156 Ky. 609. containing words "not guilty" in 13 — Gaffney v. St. Paul City By. larger type. McCormick Harvesting' Co., 81 Minn. 459; Zimmerman v. Maeh. Co. v. Sendzikowski, 72 111. Hannibal & St. J. E. Co., 71 Mo. App. 402. 476. 11 — Fessenden v. Doane, 188 111. _ 14 — Johnson v. Springfield Trac- 228, aff'g 89 111. App. 229; Carman tion Co., 176 Mo. App. 174. v. Central E. Co., 195 Pa. 440. 15— Pope v. State, 168 Ala. 33. Instructions should be so drawn 16 — Elliott v. Van Buren, 33 Mich, as to apply to the case. Illinois 49, 20 Am. Eep. 668; Keator v. Match Co. v. Chicago, E. I. & P. E. People, 32 Mich. 484. Co., 250 HI. 396. 17— Sherer v. Eischert, 23 Mo. 12 — Instructions should be sum- App. 275. ciently concrete to bring the minds § 30] Foem op Instructions. 53 § 29. Arrangement. It is the better practice to bring together all the instruc- tions bearing on the same question,* whether given on the request of either party, or on the court's own motion, in order that the jury may not be misled; 18 but a mere lack of orderly and logical arrangement of the propositions of law involved in the charge is not assignable as error, if the jury are fully informed as to the rules of law by which they are to be guided and are not misled. 19 § 30. Language. Instructions should use plain and simple language, 20 and should be limited to the facts in evidence. It is improper to use words which lead the jury into the realm of speculation and which are indefinite. 21 The charge should be conceived in terms as direct, dis- tinct, and explicit as the circumstances will permit, and should be framed, as far as practicable, in popular language. If the instruction is clear, and can be readily understood by laymen acting as jurors, the circumstance that a subtle 18— Harrington v. People, 90 111. Ey. Co. v. Dunlap (Tex. Civ. App.), App. 456, holdirg that it is not error 26 S. W. 655. for the court to refuse to read last 20 — Parrish v. State, 14 Neb. 60. the instructions given at the request 21 — A charge that if a person was of the defendant. compelled "by fear or otherwise" 19— Atchison, T, & S. F. E. Co. to si S u a document is improper, in v. Calvert, 52 Kan. 547, 34 Pac. 976. that the word "otherwise" is cal- if the instructions as a whole cor- culated to mislead the J urv and cause rectly state the law, the judgment them to *Pe™late as to what motive . . , , - ., induced the person to sign. Hazard will not be reversed because of ll- . ° , . , i , ,, , v. Western Commercial Travelers' logical arrangement of the several Asg , n; 54 Tex ^ ^ instructions, it appearing that the A charge should fee ^.^ ^ ^ jury were not misled.. Bigley v. facts in evidence and not leave the National Fidelity & Casualty Co., 94 j ury to specu iate as to causes that Neb. 813, 50 L. E. A. (N. S.) 1040n. ae tuate a party about which there It is not a ground of reversal that i s n0 testimony. Hazard v. Western a more orderly arrangement might Commercial Travelers' Ass'n, 54 have been adopted. Gulf, C. & S. P. Tex. Civ. App. 110. 54 Instructions to Juries. [§ 30 criticism, technically just, can be leveled against it, will not affect a reviewing court. 21 ? A charge is not a pleading, and words which when used in pleading may have a well-defined meaning if used by a court in giving a case in charge to a jury may well be received by the jury as meaning an entirely different thing, and the jury may thereby be misled as to the true meaning of the court. 23 The use of Latin words may not mislead when the charge as a whole is considered. 24 A charge which deals< largely in superlatives is objec- tionable, but is not ground for reversal if it is not calcu- lated to mislead. 25 Each sentence of the charge is not required to contain all the conditions and limitations which are to be gathered from the entire text. 26 It is not improper to refer in one paragraph of an instruc- tion to the preceding paragraphs, 27 and the words "as above stated" have been held not misleading in making such reference. 28 22 — Aikin v. Weckerly, 19 Mich. Son v. Shannon & Co., 6 Ala. App. 482; Chappell v. Allen, 38 Mo. 213. 537. An instruction is intended not for 24 — In a libel case the use of the lawyers, who are accustomed to Latin words "per se" was held not drawing nice distinctions, but for misleading when the charge as a laymen, who are not. Tennessee whole was considered. Bigley v. Coal, Iron & Eailroad Co. v. Barker, National Fidelity & Casualty Co., 6 Ala.. App. 413. 94 N eb. 813, 50 L. E. A. T 26 — People v. Stevens, 15 Cal. received as meaning "namely." J. % ' ,»„.., „ „ „, „ r, App. 294, 114 Pac. 800. E. Kilgore & Son v. Shannon & Co., " _ ' n _ a cq7 27 — See § 17, ante. 6 Ala. App. 537. 28— The words "as abovo stated" The phrase "to wit" in pleading in the seC(md paragTaph of an in . is employed to state time, place, struction as to se i.f.defense, held to numbers or manner, which are not refer to the preceaillg para g ra p h) of the essence of the matter in issue an a suc i 1 instruction was not mis- so that they may not be proved as leading. Cooper v. State, 123 Tenn. strictly as laid. J. E. Kilgore & 37. 32] Form of Instructions. 55 Usually a difference in phraseology will not render an instruction erroneous. 29 § 31. Use of words of statute. « Instructions given in the language of the statute are usually held sufficient, 30 and in criminal cases it is generally considered proper to describe the offense in the language of the statute. 31 When such language is once used and thereafter there is a slight departure from the literal words of the statute, but the obvious equivalent of the same are used by the court, the error is not prejudicial. 32 § 32. Verbal or technical inaccuracies. Slight verbal or technical inaccuracies in instructions will not operate as a ground for reversal, if the jury are riot misled by the charge. 33 The instructions will be construed 29 — An instruction with the words, "the court instructs the jury," held not objectionable, al- though other instructions com- menced with "if the jury find." People v. Duncan, 261 111. 339. An instruction that ' ' of its own motion the court instructs the jury," etc., does not by the quoted words add to or detract from the force and effect of the instruction. Coulter v. Illinois Cent. E. Co., 264 HI. 414. 30 — Sommer v. Carbon Hill Coal Co., 46 C. C. A. 255, 107 Fed. 230; Mt. Olive & S. Coal Co. v. Bade- maeher, 190 111. 538, aff'g 92 111. App. 442. 31— Alt v. State, 88 Neb. 259, 35 L. E. A. (N. S.) 1212n; Ward v. State, 59 Tex. Cr. App. 62. To quote from the statute under which a defendant is being prose- cuted is not necessarily erroneous. Alt v. State, 88 Neb. 259, 35 L. E. A.' (N. S.) 1212n. 32— Ward v. State, 59 Tex. Cr. App. 62. 33 — California. People v. Car- roll, 92 Cal. 561, 28 Pac.^00; O'Cal- laghan v. Bode, 84 Cal. 489, 24 Pae. 269. Georgia. Huffman v. State, 95 Ga. 469; City of Atlanta v. Champe, 66 Ga. 659. Illinois. McKenzie v. Eemington, 79 111. 388; Nichols v. Mercer, 44 111. 250; Green v. Lewis, 13 III. 642. Iowa. Galpin v. Wilson, 40 Iowa 90. Michigan. Davidson v. Kolb, 95 Mich. 469. Missouri. Lucas Market Sav. Bank v. Goldsoll, 8 Mo. App. 596. New York. Smedis v., Brooklyn & E. B. E. Co., 88 N. Y. 13. Washington. Alaska S. S. Co. v. 56 Instructions to Juries. [§32 according to their essential meaning. 34 Thus, it has been held not misleading to refer to "horses" as "cattle," 35 to speak of a "plank" as a "platform," 3(i to refer to a "lot" as "property," 37 , to speak of an "expulsion" as an "ar- rest, ' ' 3S or to use unnecessary words. 39 In a criminal case it is not error to refer to the defendant Pacific Coast Gypsum Co., 78 Wash. 247, 138 Pac. 875. United States. Chicago & N. W. By. Co. v. Whitton's Adm'r, 13 Wall. 270, 20 L. Ed. 571. 34 — Galpin v. Wilson, 40 Iowa 90. In Green v. Lewis, 13 111. 642, it was said that when it appears that the jury were not misled by an inac- curacy in some wording of an in- struction otherwise proper, there can be no error; that jurors are not in the habit of taking dictionaries with them in retiring to consider their verdict to detect inaccuracies of ex- pression. The requirements of justice should not be strained by requiring instruc- tions to be drawn with such techni- cal nicety \a to be entirely free from criticism, but the test should be whether the jury would get from the instructions a correct understanding of the rules by which they are to determine the issues involved. Tor- reyson v. United Bys. Co. of St. Louis, 144 Mo. App. 626. 35 — Eeferring to a shipment of horses as a shipment of "cattle," held not misleading. Texas & P. Ey. Co. v. Browder, — Tex. Civ. App. — , 144 S. W. 1042. 36 — In an action for injuries to a servant caused by falling between a plank and a tightener, while loosening a belt in a planing mill, an instruct] on 'referring to the plank as a " platform ' ' was not mislead- ing. Lee v. Wild Bice Lumber Co., 102 Minn. 74. 37 — In an action to recover dam- ages for injuries to a plaintiff 's storehouse, and consequent diminu- tion of the market value of the storehouse and lot whereon it was , situated, it was not error for the court to refer to the lot as "prop- erty. ' ' City of Americus v. Phillips, 13 Ga. App. 321. 38 — Though putting one out of a schoolhouse for misbehavior is not an arrest, where the misbehavior amounted to a penal offense, it was merely » verbal inaccuracy for the court to denominate the expulsion as an " arrest, ' ' and instruct the jury that a private person could ar- rest one committing an offense in his presence. Huffman v. State, 95 Ga. 469. 39— An instruction that if you find for the plaintiff "at all," held not misleading when contended that it was erroneous as reminding the jury that in the opinion of the court it was doubtful whether they should find for the plaintiff, though the quoted words should have been omitted, being unnecessary. Stubble- field v. Smith, 146 Mo. App. 316. Use of word "not" in instruction that before jury "could not convict defendant," held not misleading. McWhirter v. State, — Tex. Cr. App. — , 146 S. W. 189. §32] Fokm of Instructions. 57 as the "prisoner," 40 or as the "defendant," 41 and a slight variance in the name of the deceased, on a trial for murder, has been held harmless. 42 An instruction that the presumption that a wife does not commit suicide may be overcome by facts which "estab- lish" the contrary, is improper in that the quoted word is equivalent to saying that the fact must be made to appear beyond a reasonable doubt, but the error is not reversible. 43 In a negligence case it has been held not misleading to use the word ' ' accident, ' ' 44 and the word ' ' anguish " in an instruction as to damages has been held not misleading when it did not tend to convey the impression that the jury were to give damages for humiliation or mental annoy- ance. 45 Frequently a wrong word will be used in place of a right one, but such errors are usually held harmless if the jury were not misled. A number of cases illustrating this rule will be found in the notes. 48 40 — Dinsmore v. State, 61 Neb. 418. 41 — An objection to an instruction using the defendant's name at the beginning and later on referring to him as "the defendant," held frivolous. State v. Wilson, 152 Mo. App. 61. * 42 — On a trial for the murder of John A. Blue, an instruction that defendant was indicted for the al- leged murder of "J. A. (Archie) Blue" was not prejudicial error, there being no suggestion of vari- ance, or question as to the identity of the deceased. State v. Cameron, 166 N. C. 379. 43 — Fisher v. Travelers' Ins. Co., 124 Tenn. 450, Ann. Cas. 1912 D 1246n. 44 — Use of word "accident" in instruction held not misleading as tending to cause the jury to believe that the injuries were not the result of the defendant 's negligence. Eambie v. San Antonio & G. B. Co., 45 Tex. Civ. App. 422. 45 — C*ity of Evanston v. Bichards, 224 111. 444. 46 — Verbal inaccuracies held not ground for reversal. The following verbal inaccuracies Have all been held insufficient ground for reversal, because of the rule that under the issues of the case and the language of other instructions it was im- probable that the jury could have been misled. "All" used for "any." Holt v. State, 51 Tex. Cr. App. 15. "Approximately" used for "prox- imately." Brooks v. Muncie & P. Traction Co., 176 Ind. 298; Choctaw, O. & T. B. Co. v. McLaughlin, 43 Tex. Civ. App. 523. "Defendant" used for "plain- 58 Instructions to Jueies. [§32 It is reversible error to misstate the contentions of a tiff." Becker v. Donalson, 138 Ga. 634; Galveston, H. & S. A. Ry. Co. v. Word, — Tex. Civ. App. — , 124 S. W. 478. "Directly" used for "proxi- mately, ' ' in instruction as to whether plaintiff ' ' directly con- tributed to his own hurt," held not misleading. Euffin v. Atlantic & N. C. R. Co., 142 N. C. 120. "Disaster" used for "accident." ' Colorado Springs Elec. Co. v. Soper, 38 Colo. 126, 88 Pac. 161. " Evidence" used for "defend- ant." "Where the court correctly instructs the jury, at the request of the defendant, that facts against the defendant must be proved be- yond a reasonable doubt, a mistake or misprint in repetition of the same instruction upon the court's own motion, in substituting the word 'evidence' for the word 'de- fendant,' " was held not calculated to do any injury. People v. Carroll, 92 Cal. 568, 28 Pac. 600. "Her" used for "the." City of Baltimore v. Megary, 122 Md. 20. "Influenced" used for "uninflu- enced." Anderson v. Anderson, 128 Ind. 254. "May" used for "should" or "must." A criticism that an in- struction stating the neceBsary parts and concluding that you "may" then find the accused guilty of man- slaughter, was erroneous in that the word "should" or "must" should have been used, held hypercritical. Wilson v. State, 71 Tex. Cr. App. 399. "Or" used for "and." Citizens' Gaslight & Heating Co. v. O'Brien, 118 111. 174, aff'g 19 111. App. 231; Schooler v. State, 52 Tex. Cr. App. 331. "Ought" used for "must." An instruction that "when a criminal charge is to be proved by circum- stantial evidence, the proof ought to be not only consistent with the prisoner's guilt but inconsistent with any other rational conclusion, ' ' held not erroneous in that the word "must" should have been used in- stead of "ought." State v. Blaine, 45 Mont. 482, 124 Pac. 516. "Physical" used for "mental" in charge as to a plaintiff wander- ing away because of his "infirm physical condition," held not mis- leading. St. Louis, I. M. & S. R. Co. v. Day, 86 Ark. 104. "Plaintiff" used for "defend- ant.'.' O'Callaghan v. Bode, 84 Cal. 489, 24 Pac. 269; Lothridge v. Varna- dore, 140 Ga. 131; National Enamel- ing & Stamping Co. v. McCorkle, 219 111. 557, aff'g 122 111. App. 344; McKenzie v. Remington, 79 111. 388; Campbell v. Springfield Traction Co., 178 Mo. App. 520; Lucas Market Sav. Bank v. Goldsoll, 8 Mo. App. 596. Use of "plaintiff" for ".defend- ant" held error. Markley v. West- ern TJ. Tel. Co., 151 Iowa 612. "Result" used for "cause" in instruction as to proximate cause, held not misleading. Sloss-Sheflield Steel & Iron Co. v. Stewart, 172 Ala. 516. "Should" used for "might" or "must." An instruction stating the elements necessary to convict and stating that if the jury found all the facts enumerated they "should" find defendant guilty, held not er- roneous ih using the quoted word §32] Fokm or Instructions. 59 party, 47 but a misstatement of a material fact may not be misleading when the entire charge and the evidence is con- sidered. 48 The inadvertent use of a word is not cause for reversal if the error is favorable to the party complaining, 49 or where the word used is a synonym of the one that should have been used. 50 So, also, a phrase of an instruction instead of "might." Bader v. State, 176 Ind. 268. An instruction as to the burden of proof is not prejudicially erro- neous, beeause the word "should" is used before the words "be satis- fied from the evidence," instead of ' ' must. ' ' Kersten v. Great Northern K. Co., 28 N. D. 3. "Signing" used far "signed." Mutual Life Ins. Co. of New York v. Hodnette, — Tex. Civ. App. — , 147 S. W. 615. "Testimony" used for "evi- dence." Use of word "testimony" in place of "evidence" in instruc- tion as to burden of proof, held not objectionable. Goodwin v. Mortsen, — Tex. Civ. App. — , 128 S. W. 1182. An objection to an instruction re- quiring defendant to sustain his counterclaim by a preponderance of "testimony," in that the quoted word was too restrictive, and that the word "evidence" should have been used, held without merit where the evidence' consisted entirely of the testimony of witnesses. Black v. Brooks,. — Tex. Civ. App. — , 129 S. W. 177. "With" used for "without." Foote v. Brown, 81 Conn. 218. ' ' Worthy " used for ' ' unworthy. ' * Lake Erie & W. R. Co. v. Hobbs,. 40 Ind. App. 511. "Yes" used for "no." In re Spencer, 96 Cal. 448, 31 Pac. 453. Many other like cases have been reviewed and might be cited, but the above will be sufficient to illus- trate the rule. 47 — Southern E. Co. v. Diseker, 13 Ga. App. 799. 48 — A misstatement in stating that the contract price of land was $6,000, when in fact it was $6,500, held not misleading where both amounts were named in the instruc- tion and the contract was in evi- dence. Beck v. Budd, 44 Ind. App. 145. \49 — An instruction "that every delegation of authority, or creation of an agency, unless the extent of the authority or agency be expressly limited, carries with it the power " to do all those things which are necessary, proper, and usual to be done in order to effectuate the pur- pose of the. agency, and embraces all the approximate means necessary to accomplish the desired ends, ' ' is not erroneous because it inadvertently uses the word "approximate" in- stead of the word "appropriate," especially as the party complaining of the instruction was benefited, rather than otherwise, by a substi- tution of the word "approximate." River View Land Co. v. Dance, 98 Va. 239. 50 — Use of ' ' convinced ' ' for ' ' sat- isfied" held not error, the words- 60 Instructions to Juries. [§32 which is objected to may be the equivalent of the proper words. 51 Also a party cannot complain of an instruction contain- ing an improper word, where he did not request a charge correcting the language, and the instruction as a whole is not misleading. 52 On a prosecution for murder, where the defendant was a woman, instructions that the defendant should be" acquitted if she was actuated by the fears "of a reasonable man," of a "man reasonably cool and courageous," were held not erroneous since the defendant did not request an instruc- tion using the words "reasonable woman," and since the statutes provided that the masculine embraced the feminine gender. 53 Eequested charges should, however, be correct, and when a charge is submitted which is incomplete or unintelligible because of the use of one word where another probably was intended, it should be refused. 54 being treated as synonymous. Mey- 52 — An instruction that "an act rovitz v. Levy, 184 Ala. 293. becomes the proximate cause of an Alluding to a transaction as a injury whenever such act is the ' ' scheme, ' ' held not objectionable natural and probable consequence where the charge as a whole showed of the act in question, held not mis- that the words "transaction," leading in the inadvertent use of "scheme" and "proposition" were the word 'act' the second time used synonymously. Mowles v. Lori- instead of 'injury,' it being the mer, 129 C. C. A. 11, 212 Fed. 155. defendant's duty to request a spe- 51 — An instruction as to a witness cial charge correcting the language." testifying falsely "as to any ma- Beliable Steam Laundry v. Schuster, terial fact, ' ' held not misleading, in ' — Tex. Civ. App. — , 159 S. W. 447. that the quoted words were used in 53 — Hightower v. State, 14 Ga. place of "fact material to the is- App. 246. sue." Hoxie v. Pfaelzer, 167 111. 54 — Johnson v. State, 8 Ala, App. App. 79. 14. Use of words "by reason of " in- _ A requested charge using the word stead of "as the direct and proxi- "defendant" when some other per- mate result of" in instruction as son was intended — probably the to negligence, held not misleading, .prosecuting witness — held not intel- the formrr being the equivalent of ligible. Hendley v. State, 3 Ala. the latter. Houston & T. C. E. Co. App. 107. v. Anglin, 45 Tex. Civ. App. 41. A requested charge held properly §33] Form of Instructions. 61 Also instructions should be refused when the use of an improper case renders the charge incorrect. 55 In one case the omission of a letter was held to warrant the refusal of a charge, in that the word was without mean- ing. Such charge was incorrect, however, even when the proper word was substituted for the meaningless one. 56 § 33. Omissions. Mere omissions of words in instructions which are not likely to mislead will not operate as ground for reversal. Thus it has been held not misleading to give an instruction omitting words such as "not," 57 "if," 58 "malice," 59 "of refused when it hypothesized the killing of the "defendant." Ben- nett v. State, 160 Ala. 25. 55 — A charge that "you should find the defendant not guilty unless the evidence against him should be such as to exclude to a moral cer- tainty every hypothesis but that of his guilt," hold properly refused as it is not a question what the evi- dence should be but what it is, and it is not every hypothesis that must be excluded but every reasonable hypothesis. Crumpton v. State, 167 Ala. 4. An instruction in an action for breach of contract that "if the evi- dence fails to satisfy you, you will find for the defendant," held properly refused as the plaintiffs were entitled to recover upon a pre- ponderance of the evidence, and the word "satisfied" meant more than that. San Antonio & A. P. By. Co. v. Graves & Patterson, — Tex. Civ. App. — , 131 S. W. 613. 56 — An instruction that if de- ceased made an attack on defendant with "murderous" intent, defendant was under no obligation to flee, provided defendant was free from fault in bringing on the difficulty, held properly refused, the quoted word being without meaning, and if "murderous" was meant the charge was still erroneous in not describing the nature of the attack or hypothesizing that defendant's danger would be increased by fleeing. • Parker v. State, 153 Ala. 25. 57— Missouri, K. & T. E. Co. of Texas v. Eedus, 55 Tex. Civ. App. 205. 58 — Nichols v. Mercer, 44 111. 250. 59 — An instruction in a murder case that "if * * * the defendant * * * wilfully, premeditatedly and with aforethought" shot, etc., held not misleading or prejudicial because of the omission of the word ' ' malice ' ' before ' ' aforethought, ' ' when the latter part of the instruc- tion used the words "malice afore- thought." State v. Ferrell, 246 Mo. 322. 62 Instructions to Juries. [§33 proof," 60 or "person," 61 the meaning not being obscured. In a criminal case it was held not to be error warranting reversal to omit the date of the death of the person killed, 02 and in negligence cases the omission of the word ," care, " 63 and similar words, 64 have been held not misleading. § 34. Abbreviations. The use of abbreviations in instructions is hot to be com- mended, inasmuch as the tendency is to make the charge vague and indefinite. "The court should specify what things he means, and not leave the jury to speculate as to the other things he has reference to. ' ' 6B Thus, the use of the abbreviation ' ' etc. ' ' has been held improper. 66 State v. Taylor, 261 60— An instruction that "the bur- den is upon the plaintiff to show by a preponderance of the testimony his right to recover" is not erro- neous as omitting the words "of proof" after "burden," as the charge could mean nothing less than the burden of proof. Goodwin v. Mortsen, — Tex. Civ. App. — , 128 S. W. 1182. 61 — Omission of word "person" held immaterial error where the ordinary intelligence of the jury, would suggest that such word should be supplied. Texas & P. R. Co. v. Johrtson, 48 Tex. Civ. App. 135. 62 — On a trial for murder, where the proof showed that the deceased was found dead on the morning of August 8, 1910, a clerical mistake in an instruction whereby the date of death was stated as "on the day of August, 1912," was not re- versible error, especially since the jury were also instructed to find that the deceased died "within a year and a day ' ' after he was as- saulted, and since there is no statute of limitations barring prosecutions for murder. Mo. 210. 63 — Omission of word "care" in instruction as to negligence "by failing to exercise ordinary in the shipment of sheep," held not mis- leading. Galveston, H. & S. A. By. Co. v. Word, — Tex. Civ. App. — , 124 S. W. 478. 64 — Omission of words "to exer- cise ordinary care" or some other equivalent qualification before the words "to furnish" in an instruc- tion stating that "it was the duty of the defendant to furnish to the plaintiff a reasonably safe place in which to work," held not material. Reynolds v. New Century Min. Co., 90 Kan. 208, 133 Pac. 844. 65— Dallas Consol. Elec. St. E. Co. v. Chambers, 55 Tex. Civ. App. 331. 66 — The use of the abbreviation "etc." in an instruction requiring the jury to assess damages for ' ' loss of time, any sum of money paid out or debts incurred by him for the services of physicians for medicine, etc,," is not to be commended. Dallas Consol. Elec. St. R. Co. v. Chambers, 55 Tex. Civ. App. 331. §36] Form of Instructions. 63 § 35. Punctuation. An instruction is not erroneous .because of incorrect punctuation if it is so stated as not to be misunderstood. 67 § 36. Brevity and clearness. In writing instructions, brevity and clearness of ex- pression should be used in order that their meaning may be readily understood by the jury. 68 The questions to be determined by the jury should be simplified, and the charge should not include extraneous matters, 69 or be confused and misleading. 70 They should be made up of clear and distinct legal principles, and should- 67— Terre Haute & I. B. Co. v. Eggmann, 159 111. 550, aff'g 58 111. App. 21. 68 — Moore v. Damron, 157 Ky. 799; Louisville & N. E. Co. v. Moore, 150 Ky. 692. Instructions should . be short and concise. Adams v. Smith, 58 111. 418; Johansen v. Pioneer Min. Co., 77 Wash. 421, 137 Pac. 1019. Instructions should always be clear, accurate and concise state- ments of the law as applicable to the facts of the case. Adams v. Smith, 58 111. 417. 69 — Lang v. Omaha & C. B. St. E. Co., 96 Neb. 740. In a charge to the jury the con- troverted issues or essential facts should not be incumbered by the recital of unnecessary pleadings, by the unnecessary narration of ad- mitted or immaterial facts, or by superfluous reference to questions already settled by pleadings or by uncontradicted evidence. Lang v. Omaha & C. B..St, E. Co., 96 Neb. 740. 70— Lang v. Omaha & C. B. St. E. Co., 96 Neb. 740. An instruction tending to confuse between mere conjectures and legit- imate inferences from the facts is improper. Wilkinson v. Aetna Life Ins. Co., 144 111. App. 38, aff'd 240 111. 205, 25 L. E. A. (N. S.) 1256, 130 Am. St. Eep. 269. Confused and misleading instruc- tions should be refused, and, if given, are ground for reversal unless it is apparent that the jury were not, in fact, misled. Alabama. Louisville & N. E. Co. v. Sandlin, 125 Ala. 585. Arkansas. Arkadelphia Lumber Co. v. Asman, 68 Ark. 526. California. People v. Kelly, 132 Cal. 430, 64 Pac. 563. Illinois. North Chicago St. E. Co. v. Hutchinson, 191 111. 104, aff'g 92 111. App. 56,7; Stocks v. Scott, 188 111. 266, aff'g 89 111. App. 615; Tiche- nor v. Newman; 186 111. 264; Morton v. O'Connor, 85 111. App. 273. Indiana. Shenkenberger v. State, 154 Ind. 630. Iowa. Hoffmann v. Cockrell, 112 Iowa 141. Michigan. Fruit Dispatch Co. v. Eusso, 125 Mich. 306. Minnesota. O 'Brien v. Northwest- ern Improvement & Boom Co., 82 Minn. 136. 64 Instructions to Juries. [§36 be free of redundant verbiage and other confusing ele- ments. 71 "Every word in a charge which is given by a trial court to a jury at the written request of a party to the cause should mean something. Such a charge should correctly, succinctly and plainly state the law as applied to the facts of the case. ' ' 72 On the other hand, the fact that an instruction is not as explicit as it might be will not operate to reverse, where it is not misleading or prejudicial and is supported by the evidence, 73 and when a defendant deems a portion of a charge misleading, it should request an explanatory instruc- tion. 74 Texas. Liverpool & L. & G. Ins. Co. v. Joy, 26 Tex. Civ. App. 613; Fant v. Wright (Tex. Civ. App.), 61 S. W. 514; Capitol Freehold Land & Investment Co. v. Pecos & N. T. By. Co.' (Tex. Civ. App.), 60 S. W. 286; Eeid v. State (Tex. Cr. App.), 57 S. W. 662. Virginia. Horton v. Com., 99 Va. 848. Washington. Miller v. Dumon, 24 Wash. 648. West Virginia. State v. Morrison, 49 W. Va. 210. Instructions should be easy of in- terpretation and not likely to mis- lead. Peterson v. State, 74 Ala. 34. Involved and obscure charges should be refused. Biley v. Fletcher, 185 Ala. 570. A charge that if the fact that defendant- was not free from fault in bringing on the difficulty was ' ' not shown to the satisfaction of the jury 'to' a reasonable doubt, the jury should acquit the defendant," involved such inaccuracy and ob- scureness as to be properly refused. Johnson v. State, 8 Ala. App. 14. A charge that "the plea of set-off entered into by the defendant, if you find that he was damaged by the plaintiff, should be in such amount as you may find that he was dam- aged," held unintelligible. Basen- berg v. Lawrence, 160 Ala. 422. An instruction in a prosecution for larceny that unless the jury are ' ' satisfied from the evidence beyond all reasonable doubt that the hide of the about 18 month old yearling which the state 's witness saw in * * " at the time referred to by said witness was the hide of the about 12 month old heifer yearling" which was claimed to have been lost, then the jury must find the defend- ant not guilty, held involved, obscure and misleading. Yorty v. State, 11 Ala. App. 160. 71 — Hughes v. Anderson, 68 Ala. 280, 44 Am. Eep. 147. 72 — Tennessee Coal, Iron & Bail- road Co. v. Barker, 6 Ala. App. 413. 73 — Warson v. McElroy, 33 Mo. App. 553; Dunbar v. Briggs, 13 Neb. 332; Mutual Hail Ins. Co. v. Wilde, 8 Neb. 427. 74— Louisville & N. E. Co. v. Mason, 10 Ala. App. 263. §37] Form of Instructions. 65 § 37. Accuracy, directness and certainty. It is not only necessary that the instructions should be clear and direct, but they should also be accurate ; 75 and this is especially true when the evidence upon material issues is conflicting, 70 or where the evidence for both parties is evenly 75 — Alabama. Peterson v. State, 74 Ala. 34. California. People v. Ramirez, 13 Cal. 173. Illinois. Wabash E. Co. v. Henks, 91 111. 406; Cushman v. Cogswell, 86 111. 62; Volk v. Roche, 70 111. 297. Michigan. Aikin v. Weckerly, 19 Mich. 482. Mississippi. Staten v. State, 1 George 619. Missouri. Otto v. Bent, 48 Mo. 23. North Carolina. George v. Smith, 51 N. C. 273. Ohio. Parmlee v. Adolph, 28 Ohio St. 13. Tennessee. Anderson v. State, 3 Heisk. 86. Texas. Gibbs v. State, 1 Tex. App. 13. Instructions should be direct, ac- curate, and certain: Alabama. Salomon v. State, '28 Ala. 83. Illinois. Chicago, B. & Q. R. Co. v. Dougherty, 110 111, 521. Indiana. Loeb v. Weis, 64 Ind. 285. Michigan. Hyde v. Shank, 77 Mich. 517. Minnesota. Gaffney v. St. Paul City Ry. Co., 81 Minn. 459. Missouri. Cahn v. Reid, 18 Mo. App. 115. Montana. Perkins v. Davis, 2 Mont. 474. Oregon. Salomon v. Cress, 22 Ore. 177, 29 Pac. 439. Texas. Trinity & S. Ry. Co. v. Blashfleld Vol. 1—5 Schofield, 72 Tex. 496; Welsh v. State, 11 Tex. 368. Instructions Bhould be positive and direct as to the law under which the jury are to return their verdict. Patterson v. Wenatchee Canning Co., 53 Wash. 155, 101 Pac. 721. 76— Kranz v. Thieben, 15 111. App. 482; St. Louis Coal R. Co. v. Moore, 14 111. App. 510; City of Mendota v. Pay, 1 111. App. 418; State v. Bailey, 60 N. C. 137. Instructions should be accurate where the evidence is conflicting. Rumbold v. Supreme Council Royal League, 206 111. 513, rev'g 103 111. App. 596; Muren Coal & Ice Co. v. Howell, 204 111. 515, rev'g 107 111. App. 1; Perkins v. Knisely, 204 111. 275, rev'g 102 111. App. 562; Sibert v. Shoal Creek Coal Co., 181 111. App. 11; Novitsky v. Knickerbocker Ice Co., 180 111. App. 188; Stevens v. Chicago Feather Co., 178 111. App. 455; Bartholomew v. Illinois Val. Ry. Co., 154 111. App. 512; Gorey v. Illinois Cent. R. Co., 153 111. App. 17; Ruddell v. Baltimore & O. R. Co., 152 111. App. 218. Where the evidence is sharply conflicting, it is necessary that the instructions should be accurate in all material particulars. Chickasha' Cot- ton Oil Co. v. Brown, 39 Okla. 245, 134 Pac. 850. Instructions as to furnishing tim- bers to miner should be accurate where the question is vital. Meunier 66 Instructions to Juries. [§37 balanced, 77 or where the facts are of such nature as to appeal to the sympathy of the jurors. 78 A party need not be content with general rules; he is entitled to have the jury instructed in the law as applied to his particular case. 79 If an instruction has been held defective by the supreme court, it should not be given, even though it has not been held to be sufficient ground for reversal. 80 Instructions lacking in these requirements may and should be refused; 81 and the giving of instructions which are lacking in clearness and accuracy, and which may have misled the jury, will be cause for reversal. 82 The fact that the law is accurately stated on one side will not cure errors in instructions given for the other party. 83 v. Chicago & C. Coal Co., 180 111. App. 114. Where the evidence is conflicting as to the seriousness of the injury instructions on damages must be accurate. Trzetiatowski v. Evening American Pub. Co., 185 111. App. 451. 77 — American Ins. Co. v. Craw- ford, 89 111. 62; Norfleet v. Sigman, 41 Miss. 631. 78 — Instructions must be" clear, accurate and concise where the fact3 appeal to sympathy. Chicago Union Traction Co. v. Miller, 212 111. 49. 79 — Cache River Drain Dist. v. Chicago & E. I. R. Co., 255 111. 398. 80— People v. Lukoszus, 242 111. 101. 81 — Alabama. Smith v. Collius, 94 Ala. 394. Florida. Union Bank v. Call, 5 Fla. 409. Georgia". Todd v. Fambro, 62 Ga. 665. Minnesota. Hocum v. Weitherick, 22 Minn. 152. Ohio. Adams v. State, 29 Ohio St. 412. West Virginia. Baltimore & 0. R. Co. v. Lafferty, 2 W. Va. 104. Wisconsin. Large v. Or vis, 20 Wis. 696. 82— Georgia. Smith v. Overby, 30 Ga. 241. Illinois. Chicago, R. I. & P. Ry. Co. v. Harmon,, 12 111. App. 54. Maine. Gilmore v. McNeil, 45 Me. 599. Nebraska. City of Crete v. Childs, 11 Neb. 252; Meyer v. Midland Pac. R. Co., 2 Neb. 319. Ohio. Pendleton St. R. Co. v. Stallmann, 22 Ohio St. 1; Washing- ton Mut. Ins. Co. v. Merchants' & Manufacturers' Mut. Ins. Co., 5 Ohio St. 459. Instruction misquoting statute in relation to duties of mine examiner, but not changing its meaning, held not prejudicial error. Colesar v. Star Coal Co., 255 111. 532. 83— Illinois Cent. R. Co.i v. Maffit, 67 111. 431; Village of Warren v. Wright, 3 111. App. 420. §38] Fobm of Insxbuctions. 67 § 38. Ambiguous instructions. Instructions should not be susceptible of two meanings, but should be drawn in plain and unambiguous language, 8 * so as not to be misleading. 85 Bequests for instructions which are ambiguous should be refused, 86 and the giving of such charges will constitute reversible error, if the jury are misled, 87 and the instruc- 84 — Young v. Bidenbaugh, 67 Mo. 574. 85 — When instructions are sus- ceptible of two meanings, they are misleading. Illinois. Chicago, B. & Q. B. Co. v. Housh, 12 111. App. 88. Michigan. Marquette; H. & O. B. Co. v. Marcott, 41 Mich. 433; Com- stock v. Smith, 26 Mich. 306; Dodge v. Brown, 22 Mich. 446. Missouri. Medlin v. Brooks, 9 Mo. 106; Legg v. Johnson, 23 Mo. App. 590; Furgeson v. Brown, 1 Mo. App. 458. Virginia. Gordon v. City of Bich- mond, 83 Va. 436; Virginia Cent. E. Co. v. Sanger, 15 Gratt. 230. West Virginia. Gas Co. v. Wheel- ing, 8 W. Va. 371. 86 — Alabama. Brewer v. Watson, 71 Ala. 299, 46 Am. Eep. 318; Duck- worth's Ex'rs v. Butler, 31 Ala. 164; Bobbins v. Harrison, 31 Ala. 160; Eolston v. Langdon, 26 Ala. 660; Boss v. Boss, 20 Ala. 105. Indiana. Loeb v. Weis, 64 Tnd. 285. Maryland. Baltimore & O. B. Co. v. Thompson, 10 Md. 76. Missouri. Dunn v. Dunnaker, 87 Mo. 597; Kaw Brick Co. v. Hogsett, 82 Mo. App. 546; Wood v. White, 6 Mo. App. 592. Ohio. Miller v. Florer, 19 Ohio St. 356. West Virginia. Henry v. Davis, 7 W. Va. 715. United States. United States v. Jones, 8 Pet. 399. 87 — The giving of ambiguous in- structions, if calculated to mislead the jury, will be a good ground for reversal: California. People v. Maxwell, 24 Cal. 14. Georgia. Pain v. Cornett, 25 Ga. 184. Missouri. Belt v. Goode, 31 Mo. 128. Nevada. State v. McGinnis, 5 Nev. 337. North Carolina. Adams v. Beeves, 68 N. C. 134, 12 Am. Bep. 627. United States. Gougar v. Morse (C. C. A), 66 Fed. 702. An instruction given in language which is capable of two interpreta- tions, the one correct in point of law, and the other incorrect, which may have misled them, to the prejudioe of the complaining party, amounts to a misdirection, and the judgment should be reversed for this error. Ocean Steamship Co. v. McAlpin, 69 Ga. 440; McCracken v. Webb, 36 Iowa 551; Frederick v. Ballard, 16 Neb. 559; Aetna Ins. Co. v. Beed, 33 Ohio St. 283. If it be apparent that an instruc- tion, though ambiguous, did not mis- lead the jury to the prejudice of the complaining party, it will not be 68 Instbuctions to i Jubies. [§ 38 tions when considered as a whole, show probable prejudice. 88 In determining whether an instruction is misleading the test is not what the ingenuity of counsel can at leisure work out the instructions to mean, but how and in what sense * under the evidence before them and the circumstances of the trial would ordinary men and jurors understand the instructions. 89 It has been held that an instruction that ' ' the defendant company denies that they were guilty of negligence and that he was killed by the negligence of his coemployees" is not erroneous, as the latter part of the charge relates back to the word "denies," 90 and an instruction as to dam- ages, allowing plaintiff "just and reasonable compensation for necessary nursing and attention to the child until cured," has been held not erroneous in that since the child had her limb amputated she could never be " cured, " as this was a strained construction of the word ' ' cured. ' ' 91 But where a defendant alleged that the plaintiff was injured while working under the direction of the mine manager, an instruction using the term "miner" without distinguishing between a miner working at his calling and one entering the mine and working under the direction of the mine manager to make conditions safe, was misleading. 92 And an instruction on insanity or nuncupative wills, when the only question is the authorship of a mutilation, is am- biguous. 93 ground for reversal. Burbridge v. People, 20 Mich. 135; Bice' v. Olin, Kansas City Cable B. Co., 36 Mo. 79 Pa. St. 391. App. 669. See Bailroad Co. v. Ham- ■ 89 — Young v. City of Fairfield, 173 bleton, 40 Ohio St. 496; Beid v. State 111. App. 311. (Tex. Cr. App.) 57 S. W. 662. 90— Southern B. Co. v. Diseker, 13 88 — In determining whether the Ga. App. 799. jury might reasonably have been 91 — Ft. Worth & D. C. B. Co. v. misled by an ambiguous instruction, Wininger, — Tex. Civ. App. — , 159 the instructions should be construed S. W. 881. as a whole. Sweeney v. Merrill, 38 92 — Driza v. Jones & Adams Coal Kan. 216, 5 Am. St. Bep. 734, 16 Co., 171 111. App. 139. Pac. 454. See also, People v. Alsemi, 93 — Tucker v. Whitehead, 59 Miss. 85 Cal. 434, 24 Pac. 810; Fisher v.i 594. 39] Fokm of Instbuctions. 69 When instructions are ambiguous, the attention of the court should be called thereto, so that the error may be corrected. 94 § 39. Vague, involved and obscure instructions. Inasmuch as instructions must be brief, clear and con- cise, 95 it is proper to refuse instructions which are long, involved, vague or obscure. 96 The charge should not be so worded as to leave the jury 94 — Where instructions are am- biguous or susceptible of different interpretations, and the attention of the court is called thereto, no matter at what stage of the trial, if before the jury have acted there- on, it at once becomes the duty of the court to remove the ambiguity, and to make its meaning plain. Baltimore & O. E. Co. v. Boyd, 67 Md. 32, 1 Am. St. Rep. 362. If the charge is ambiguous, the party who is dissatisfied should ask the court to explain it before the jury leave the bar, and, if he do not, he will be deemed to have waived the objection. Schuylkill & D. Im- provement Co. v. Munson, 14 Wall. (U. S.) 442, 20 L. Ed. 867. See also, Railroad Co. v. Hambleton, 40 Ohio St. 496. 95— See f § 36, 37, ante. 96 — Alabama. Street v. State, 67 Ala. 87; Tillman v. Chadwick, 37 Ala. 317; Miller v. Garrett, 35 Ala. 96. Arkansas. Sparks v. Mack, 31 Ark. 666. California. People v. Carroll, 92 Cal. 568, 28 Pac. 600; People v. Best, 39 Cal. 690. Georgia. Central R. Co. v. Haslett, 74 Ga. 59. Illinois. Roth v. Smith, 54 111. 431; Preisker v. People, 47 111. 382. Iowa. Perry v. Dubuque South- western Ry. Co., 36 Iowa 102. Louisiana. State v. Lacombe, 12 La. Ann. 195. Maine. Hunter v. Randall, 69 Me. 183. Maryland. Cumberland Coal & Iron Co. v. Scally, 27 Md. 589. Minnesota, Hayward v. Knapp, 23 Minn. 430. Mississippi. Tucker v. Whitehead, 59 Miss. 594. Missouri. Greer v. St. Louis, I. M. & S. Ry. Co., 80 Mo. 555. Nevada. Colquhoun v. Wells, Fargo & Co., 21 Nev. 459, 33 Pac. 977. Pennsylvania. McKinney v. Sny- der, 78 Pa. 497. Virginia. Levasser v. Washburn, 11 Gratt. 572. West Virginia. State v. Robinson, 20 W. Va. 713, 43 Am. Rep. 799; State v. Cain, 20 W. Va. 679; Gas Co. v. Wheeling, 8 W. Va. 320. United States, Union Pac. Ry. Co. v. O'Brien, 161 U. S. 451, 40 L. Ed. 766. Long and involved instructions properly stating that there is no evidence on an issue may be refused. Green v. Smith, 180 Ill/App. 572. 70 Instructions to Jukies. [§39 to conjecture as to its meaning, and the giving of vague and involved instructions usually tends to mislead the jury. 97 Thus, an instruction requiring the plaintiff to establish "his case" by a preponderance of the evidence is mis- leading when there .is no controversy as to the plaintiff's case, but only as to the. defenses thereto. 98 And where an indictment charges an assault with intent to commit rape, an instruction that if the jury believe from the evidence that the defendant is guilty of " an attempt, ' ' as charged in the indictment, their verdict should be guilty, is too vague, and may well be misleading. 99 It has also been held misleading to instruct "that a pistol is not concealed unless it is hid from the ordinary observa- tion of those who are in a position to see it if it were not concealed, " x or to charge that ' ' any fact in favor of a defendant is sufficiently established when proven by a pre- ponderance of evidence; and even though, as to such, fact, the jury have some doubt, if it has been proven by a prepon- derance of evidence, they must acquit. ' ' 2 An instruction that "you will assess to the plaintiffs such damages as, from all the evidence in this case, you shall find he has sustained by reason of the illegal taking and detention of the personal property, ' ' is misleading. 3 Obscure and confused instructions are ground for reversal if it appears that the jury were misled, 4 although some 97— Illinois. City of Freeport v. 98— Cutler v. Pardridge, 182 111. Isbell, 83 111. 440, 25 Am. Rep. 407. App. 350. Mississippi. Archer v. Sinclair, 99— Preisker v. People, 47 HI. 382. 49 Miss. 343; Preston v., State, 25 1— Street v. State, 67 Ala. 87. Miss. 383. 2— People v. Carroll, 92 Cal. 568, Missouri. State v. Laurie, 1 Mo. 28 Pac - 60 °- App. 371. 3 — Morehead v - Adams, 18 Neb. New York. Wilson v. Dickel, 7 569. A™ T»iv 17-5 4— Georgia. Chattanooga, E. & C. A pp. viv. juo. R Co y 0wen; 9p Ga Thomas Texas. Henry v. Sansom, 2 Tex. v gtate) 67 Ga 767 _ Civ. App. 150. Illinois. Haskin v. Haskin, 41 111. West Virginia. State v. Jones, 20 197; Union Stock Yards & Transit W. Va. 764. Co. v. Monaghan, 13 111. App. 148. §40] Form of Instructions. 71 decisions hold that the failure to ask an explanatory charge will constitute a waiver of the error. 5 § 40. Predicating instructions on belief from evidence. Instructions should be applicable to and limited to the evidence adduced in the cause, 6 and it is therefore cus- tomary to preface the instructions with the words "If you believe from the evidence," or words of the same purport, and the omission of such words usually renders the instruc- tions erroneous. 7 . It will not be sufficient to preface an instruction with the words, "If you believe," 8 and the omission of the words "from the evidence" may warrant the refusal of an instruc- Maryland. Baltimore & O. R. Co. v. Boyd, 67 Md. 32, 1 Am. St. Eep. 362. Missouri. James v. Missouri Pac. By. Co., 107 Mo. 480. Nebraska. Morehead v. Adams, 18 Neb. 569. Pennsylvania. Murray y. Com., 79 Pa. St. 312; Com. v. Drum, 58 Pa. St. 9. > Texas. Kalamazoo Nat. Bank v. Sides (Tex, Civ. App.), 28 S. W. 918. Virginia. Gordon v. City of Rich- mond, 83 Va. 436. An instruction which is vague and obscure will not be ground for re- versal if it has no tendency to mis- lead. Palmore v. State, 29 Ark. 248; Denton v. Jackson, 106 111. 433. 5 — O'Donnell v. Rodiger, 76 Ala. 222, 52 Am. Rep. 322; Whilden v. Merchants' & Planters' Nat. Bank, 64 Ala. 1, 38 Am. Rep. In. 6— See § 82, post. 7 — Colorado. Ingols v. Plimpton, 10 Colo. 535, 16 Pac. 155; Salomon v. Webster, 4 Colo. 353. Illinois. Graff v. People, 134 111. 380; Home v. Walton, 117 111. 130; Holliday v. Burgess, 34 111. 193; Fame Ins. Co. v. Mann, 4 111. App. 485. Missouri. McPherson v. St. Louis, I. M. & S. Ry. Co., 97 Mo. 253. The jury should be permitted to believe nothing unless that belief be occasioned by the evidence. Their minds should always be directed to that, and to that only, as the grounds of their belief. Ewing v. Runkle, 20 111. 448; Fame Ins. Co. v. Mann, 4 111. App. 485. If any instruction directs the jury that upon any question submitted to them it must be determined from the evidence upon the question or equiv- alent direction, it is sufficient. Van- dalia Coal Co. v. Temm, 175 Ind. 524. 8 — Salomon v. Webster, 4 Colo. 353; Graff v. People, 134 111. 380; Ewing v. Runkle, 20 111. 448; Fame Ins. Co. v. Mann, 4 111. App. 485. But see Blumhardt v. Rohr, 70 Md. 328. 72 Instructions to Jubies. [§40 tion, 9 but will not always constitute reversible error. 10 Where the words "If you believe from the evidence" are used in the first clause of an instruction, it is not necessary to repeat the restriction "from the evidence" in subsequent clauses. 11 9 — An instruction defective in this regard may properly be refused, especially when its substance has already been given in another in- struction. Home v. Walton, 117 Iljl. 130; Pfirshing v. Heitner, 91 111. App. 407. 10 — The fa«t that an instruc- tion, in its first part, omits the words "from the evidence" after the words "if you believe" will not work a reversal if the instruction, in its concluding clause, uses the words "and if you further believe from the evidence," as the jury cannot be misled. Belden v. Wood- mansee, 81 111. 25. "Where a jury are instructed, if certain facts are true, provided they further believe, from the evidence, certain other facts exist, * * * a jury of ordinary intelligence would surely conclude that they must believe the facts first enumerated, from the evidence, as well as those last mentioned." Toledo, W. & W- By. Co. v. Ingraham, 77 111. 309. Where the judge charged: "If you believe that the defendant vio- lated the lease contract and cut and carried away any timber that it had no right to cut and carry away un- der the terms of the lease contract, and you believe that the plaintiff is entitled to recover damages, then the court gives you this rule of law by which damages "are measured, ' ' and the charge showed that the jury must be satisfied from the evidence as to the right of recovery, the omission of the words, "from the evidence" after "if you believe," furnished no ground for new trial. Phillips Lumber Co. v. Bush, 134 Ga. 323. , A failure to base the instructions on a belief from the evidence is not such an error as will call for a re- versal of the judgment. McPherson v. St. Louis, I. M. & S. By. Co., 97 Mo. 253; State v. Umfried, 76 Mo. 404. The judgment should not be re- versed unless it appears that the jury were misled. Holliday v. Burgess, 34 111. 193. 11 — Leighton & Howard Steel Co. v. Snell, 217 111. 152, aff'g 119 111. App. 199; Slack v. Harris, 200 111. 96, aff'g 101 HI. App. 527; Village of Altamont v. Carter, 196 111. 286, aff'g 97 111. App. 196; People v. Mul- len, 179 111. App. 262. i The failure of the trial court to repeat, in every clause of an instruc- tion, that the jury must find from the evidence, is not reversible error. Wear v. Duke, 23 HI. App. 322; Powers v. Com., 110 Ky. 386; State v. Davis, 27 S. C. 609. The introductory sentence in an instruction, "If the jury believe from the evidence that," qualifies the residue of the instruction, and submits to the jury for^its finding every fact therein stated. Wills v. Cape Girardeau Southwestern B. Co., 44 Mo. App. 51. A jury of intelligent men will not be misled if such qualification is § 40] , Form of Instructions. 73 It is not error to use the words "if the evidence shows you;" 12 and the use of the words "if it appears" from the evidence have been held improper but not misleading. 13 Also, it has been held not misleading to use the words "if the plaintiff has shown by the evidence." 14 An instruction that "if there is in the mind of any juror a reasonable supposition of the defendant's innocence, you should not convict, ' ' is properly refused as it does not predi- cate the duty not to convict upon a supposition founded upon the evidence. 15 It is likewise improper to direct the jury to find for one of the parties "if * * * they are inclined to believe * * *," since jurors are to decide cases according to their convictions of the truth of the matter found by their verdict, and not their mere inclinations. 16 Instructions have been held harmful where they affirma- tively direct the jury to consider all the facts and circum- stances, and contain like expressions, or include improper . elements, without limiting the inquiry to the evidence or to evidence upon a particular point. 17 It has also been held error to base an instruction on a belief from "the evidence and the instructions," 18 or to omitted in the remaining portion of 16 — Cox v. People, 109 111. 459. the instruction. Gizler v. Witzel, 17 — Vandalia Coal Co. v. Yemm, 82 111. 322; Powers v. Com., 110 Ky. • 175 Ind. 524. 386. Held error to base an instruction 12 — Silberberg v. Pearson, 75 Tex. on a belief "from the evidence and 287. circumstances proven in the case." 13 — Lecklieder v. Chicago City Greer v. Com., Ill Ky. 93. Ry. Co., 172 111. App. 557* An instruction to determine on 14 — A criticism of an instruction which side the preponderance of the telling the jury ' ' if the plaintiff has evidence lies from the ' ' facts shown shown by the evidence" instead of by the evidence and from all other using the words "if the 'jury be- facts and circumstances/' held lieve from the evidence," held too cause for reversal. Balenovic v. technical, since the jury could not Ansick, 181 111. App. 660. have been misled. Southern R. Co. 18 — Kranz v. Thieben, 15 111. App. v. Floyd, 99 Miss. 519. 482. 15— McCoy v. State, 170 Ala. 10. 74 Instructions to Jubies. [§40 preface an instruction with the words, "If they believed, under the charge." 1S) Where there is no conflicting evidence as to certain facts, there is no error in stating them to the jury without quali- fication, 20 and there is another line of cases which hold, especially in assessing damages, that an instruction is not harmful for lack of a specific direction limiting the inquiry to the evidence. 21 An instruction that ' ' if you believe from the evidence in this case" instead of the "preponderance" of the evidence, is not erroneous where other instructions correctly submit the burden of proof. 22 § 41. Necessity of hypothesizing facts. Usually instructions should be so drawn as to state the law upon a supposed state of facts to be found by the jury, 23 19— Munden v. State, 37 Tex. 353. But see Hoxie v. Pfaelzer, 167 111. App. 79. Where an instruction that if the jury find "from the evidence" a certain fact, was held not faulty because the words "and from the instructions" or "under the instruc- tions of the court ' ' were not added. And in National Live Stock Ins. Co. v. Wolfe, — Ind. App. — , 106 ■ N. E. 390, it was held that it is not a correct expression to say in an instruction: "If you find under the instructions given," etc., but the error is harmless where the in- structions as a whole correctly sub- mit the issues. 20 — Carpenter v. Hyman, 67 W. Va. 4, 20 Ann. Cas. 1310. If an instruction is based on ad- mitted facts, it is not necessary to preface it with the words, "If you believe from the evidence." Schmidt v. Pfau, 114 HI. 494. 21 — Vandalia Coal Co. v. Yemm, 175 Ind. 524. Where damages can be lawfully assessed and the instruction states the correct elements, it is not harm- ful to fail to restrict the considera- tion to the evidence. Vandalia Coal Co. v. Yemm, 175 Ind. 524. 22 — Coulter v. Illinois Cent. E. Co., 264 111. 414. 23 — Arkansas. St. Louis, I. M. & S. Ky. Co. v. Vincent, 36 Ark. 451; Stillwell v. Gray, 17 Ark. 473; State Bank v. McGuire, 14 Ark. 530. California. People v. Levison, 16 Cal. 98, 76 Am. Dec. 505. Illinois. Wall v. Goodenough, 16 111. 415; Sherman v. Dutch, 16 111. 283; Eames v. Blackhart, 12 111. 195. Nebraska. Strong v. State, 61 Neb. 35. An instruction may be given which applies the law to the hy- pothetical state of facts, if the HI] Fobm of Instbtjctions. 75 especially where the evidence introduced is conflicting. 24 The court should not assume the existence of disputed facts, 25 and it has been held not erroneous to refuse a requested instruction which may have been meant to be hypothetical, but which the court understood to be posi- tive. 28 However, when the facts are undisputed, the court may charge upon them directly and without hypothesis, 27 and a defendant may successfully move the court for per- emptory instructions, where he does so on plaintiff's evi- jury believe from the evidence that the facts contained in the hypothesis exist, and it is error to refuse an instruction based upon such hypo- thetical statement. Sims v. South- ern Ry._ Co., 59 S. C. 246. The proper method of drafting in- structions is to tell the jury that if the facts are so and so, then certain consequences will follow. State Bank v. McGuire, 14 Ark. 530; Gowen v. Kehoe, 71 111. 66; Balti- more & O. B. Co. v. Skeels, 3 W. Va. 556. 24 — Alabama. American Oak Ex- tract Co. v. Byan, 112 Ala. 337; Carlisle v. Hill, 16 Ala. 398. Arkansas. Britt v. Aylett, 11 Ark. 475, 52 Am. Dec. 282. Colorado. Bushnell v. Crooke Mining & Smelting Co., 12 Colo. 247, 21 Pac. 931. Georgia. Southern Insurance & Trust Co. v. Lewis, 42 Ga. 587. Illinois. Chambers v. People, 105 111. 409; Gowen v. Kehoe, 71 111. 66; Hopkinson v. Pebple, 18 111. 264. Kentucky. Chiles . v. Booth, 3 Dana 566; Stout v. Cloud, 5 Litt. 207; Dallam v. Handley, 2 A. K. Marsh. 418; Smith's Heirs v. Bob- erson, 5 J. J. Marsh. 636; Bucklin v. Thompson, 1 J. J. Marsh. 226. Michigan. Dodge v. Brown, 22 Mich. 446. Mississippi. Wilson v. Williams' Heirs, 52 Miss. 487. Missouri. Linville v. Welch/ 29 Mo. 203; Watson v. Musick, 2 Mo. 29. New York. Chapman v. Erie By. Co., 55 N. Y. 579; Doughty v. Hope, 3 Denio 594. Ohio. Oliver v. Sterling, 20 Ohio St, 391. Pennsylvania. Bartley v. Wil- liams, 66 Pa. St. 329; Pennsylvania E. Co. -v. MeTighe, 46 Pa. St. 316; Sweitzer v. Hummel, 3 Serg. & R. 228; Delaware, L. & W. B. Co. v. Smith, 1 Walk. 88. South Carolina. Devereux v. Champion Cotton Press Co., 17 S. C. 72. West Virginia. Baltimore & O. E. Co. v. Skeels, 3 W. Va. 556. 25 — See ch. XI, post 26 — Dodge v. Brown, 22 Mich. 446. 27— Nelms v. Williams, 18 Ala. 650; Williams v. Shackelford, 16 Ala. 318; Henderson v. Mabry, 13 ; Ala. 713; Chiles v. Booth, 3 Dana (Ky.) 566. 76 Instbuctions to Jxjeies. [§ 41 dence alone, and admits every fact that plaintiff's evidence conduces to prove. 28 Eequested charges which do not properly hypothesize all the facts should be refused. Thus, in an action for injuries to a person while boarding a train caused by being caught between such train and the platform, a charge hypothesiz- ing a knowledge by the plaintiff of his peril in holding onto the train when it moved, but not hypothesizing a belief or knowledge that his peril would be decreased by releasing his hold, is properly refused. 29 Where an instruction to the jury in a case embraces a hypothetical statement of the facias of the case, or of the facts which bear on any issue in the case, and the jury are told that, if they believe the facts as stated to be true, they are authorized to find in a particular way, the statement should be complete, and embrace all of the material facts pertinent to the particular issue which the evidence tends to prove. 30 28 — Dallam v. Handley, 2 A. K. Where upon a certain hypothesis Marsh. (Ky.) 418. the jury are authorized to find for But see People v. Levison, 16 Cal. plaintiff, the hypothetical statement 98, 76 Am. Dec. 505, where it was must embrace all the facts essential said that although Circumstances are to plaintiff's right of recovery. An sometimes conclusive, in the ab- instruction that a plaintiff is en- sence of opposing proof, they are titled to recover upon the finding of not generally conclusive, and that certain facts withdraws from the it should always be left to the jury jury the finding of any other fact to determine whether those cireum- that would defeat such a verdict, stances are established. Adams v. Capron, 21 Md. 186, 83 29 — Central of Georgia By. Co, v. Am. Dec. 566. Hingson, — Ala. — , 65 So. 45. If an instruction be so drawn as Ml— Mississippi. Dean v. Tucker, to predicate the right of recovery 58 Miss. 487; New Orleans, J. & G. of a portion only of the facts con- N. B. Co. v. Statham, 42 Miss. 607. stituting the cause of action, it will Missouri. First Nat. Bank of nevertheless he held sufficient if in Warsaw v. Gurrie, 44 Mo. 91. view of all the evidence the court Nebraska. Bowie v. Spaids, 26 can say that the other essential facts Neb. 635; Gilbert v. Merriam & necessarily follow in ease those sup- Boberson Saddlery Co., 26 Neb. 194; posed be found. Moore v. Missouri Eunge v. Brown, 23 Neb. 818. Pac. By. Co., 73 Mo. 438. §41] Fobm of Instructions. 77 The fact that an instruction was not hypothetical in form will hot be a ground for reversal if no prejudice could have resulted. 31 31 — Southern Insurance & Trust Co. v. Lewis, 42 Ga. 587. Where the only testimony upon the point at issue between the parties is the testimony of the parties, and the tes- timony of the two parties is in direct contradiction, the court may' charge that, if the jury believe the testi- mony of the defendant, plaintiff cannot recover. Laviolette v. Al- berts, 126 Mich. 96. CHAPTEE VI. Necessity of Instructing in Writing. § 42. Necessity for instructing in writing at common law and under statutes. § 43. Effect of presence of stenographer or reporter. § 44. When statutes apply — What are instructions. § 45. Remarks during course of trial — Statements not made to jury. § 46. Statements as to evidence — Recapitulation of evidence. § 47. Reading statutes to jury or reading from books and papers. § 48. Statements as to duty and conduct of jurors and their qualifications. § 49. Directions as to verdict. § 50. Remarks while giving instructions — Questions of jurors. § 51. Sufficiency of request for written charge. § 52. Sufficiency of compliance with statute. § 53. Oral explanations, modifications, additions, or withdrawals of written instructions. § 54. Subsequent reduction of oral charge to writing. § 55. Effect of failure to instruct in writing when required. § 56. Waiver or loss of right to written instructions. § 42. Necessity for instructing in writing at common law and under statutes. At common law, and in the absence of statute, instruc- tions may be either oral or written at the discretion of the trial judge. If the charge contains the law applicable to the case and is explained so as to be understood by the jury, and there is no statute governing the matter, it can make no essential difference whether such instruction is given orally or in writing. The matter is one which is left entirely to the discretion of the court, and the manner in which such discretion is exercised is not subject to criticism on appeal. 1 1 — Smith v. Crichton, 33 Md. 103.- doubted right to have it reduced to But where a party desires to ex- writing. Smith v. Crichton, 33 Md. cept to an instruction, it is his un- 103. (78) §42] Necessity of Instructing in Writing. 79 In many states, statutes have been enacted which provide for the giving of instructions in writing. 2 2 — Alabama. In all civil and criminal cases, the judge must charge the jury in writing, if the charge is required to be so given by either party and notice of such requisition is given after the testi- mony is closed and before argument to the jury is commenced. Code 1907, §5363. Arizona. If the court reporter be not present the charge shall be in writing, unless waived. Code 1913, §514. Arkansas. Const., art. VII, § 23, requires the charge to be in writing if requested by either party. California. In criminal cases, all instructions given (except such as might incidentally be given during the admission of evidence) ■ shall be in writing, unless both parties re- quest the giving of oral instructions, or consent thereto, and when given orally, the instructions must be taken down by the reporter. Penal Code, II 1127, § 1093. Code Civ. Proc, § 608, requires instructions to be written. Colorado. In the trial of criminal cases in courts of record, instruc- tions shall be given in writing. Mills Ann. St. 1912, § 2114. In civil and criminal cases in the district court, instructions shall be reduced to writing, * * * pro- vided that at the request of both parties, instructions may be given orally. Mills Ann. St. 1912, § 2115. See Tyler v. McKenzie, 43 Colo. 233, 95 Pac. 943. Instructions must be written. Wettengel v. City of Denver, 20 Gplo. 552, 39 Pac. 343. Florida. Every charge to the jury shall be oral, except when in cir- cuit, criminal courts of record or county court, either party or his attorney shall request in writing be- fore the evidence is closed that it be in writing. Gen. St. 1906, § 1497. In capital cases, charge shall be wholly in writing. Gen, St. 1906, § 3990. Georgia. Judges * * * shall,'when counsel for either party requests it before argument begins, write out their charges. Code 1911, § 1056. Idaho. Either party may request court to give instructions in writing on law arising in the cause. With the consent of the parties the court may charge orally, and such charge is to be taken down by the court reporter. Eev. Codes, § 4383. Illinois. No judge shall instruct the petit jury in any case, civil or criminal, unless such instructions are reduced to writing. J. & A. Ann. •St. If 8610. In the municipal court of Chi- cago, the charge may in the discre- tion of the court be given orally or in writing, but when given orally it shall at the request of either party be taken down in shorthand. J. & A. Ann. St. If 3349. Indiana. Instructions shall be in iwriting. Burns' Ann. St. 1914, § 558 (5). See also, Lesueur v. State, 176 Ind. 448. Failure to give all instructions in writing where .parties do not con- sent to oral charges is reversible error. Molt v. Hover, 40 Ind. App. 552. 80 Instructions to Juries. [§42 Thus, some statutory enactments require all instructions to be in writing, while others provide for written instruc- Iowa. All instructions asked and the charge of the court shall be in writing. Ann. Code 1897, § 3705. Kansas. In criminal cases, the judge must charge the jury in writ- ing, and the charge shall be filed among the papers in the cause. Gen. St. 1909, § 6815. Kentucky. In civil cases, written instructions must be given when re- quested by either party. Civ. Code 1900, § 317, subd. 5. In criminal cases, instructions must be written. Crim. Code Prac, §225. Louisiana. Court must charge in writing on timely request. Code Prac, § 515. Maine. Court shall' charge orally or in writing on all matters of law arising in the case. Rev. St. 1904, ch. 84, § 97, p. 750. Massachusetts. All instructions must be reduced to writing and filed in the case. Pub. St. 1882, p. 842, § 11. Michigan. In all civil and crim- inal cases at law, circuit courts in charging juries shall charge only as to the law of the case, and such instructions need be in writing only where there is no stenographer pres- ent. Mich. Judicature Act of 1915, in force Jan. 1, 1916, ch. XVIII, §58. Minnesota. The stenographic re- porter shall * * * record * * * charge to jury. Gen. St. 1913, § 241. Mississippi. All instructions asked by either party must be in writing, and all alterations -or modifications given by the court or refused shall be in writing. Code 1906, ch. 20, §793. Missouri. All instructions must be written. S^ate v. De Mosse, 98 Mo. 340; Mallison v. State, 6 Mo. 399; City of Cape Girardeau v. Fisher, 61 Mo. App. 509. Nebraska. All instructions , must be in writing if either party re- quires it. Cobbey's Ann. St. 1911, §1267; Neb. Rev. St. 1913, §§7846, 7850. New Mexico. All instructions asked by either party, whether given or refused, and charge of court shall be in writing. Comp. L. 1897, §§ 2992, 2994. North Carolina. Where the whole of the charge on the law is not put in writing as requested, the defend- ant is entitled to a new trial. Saw- yer v. Roanoke Railroad & Lumber Co., 142 N. C. 162. North Dakota. No court shall in- struct the jury in civil cases unless such instructions shall first be re- duced to writing. Comp. L. 1913, § 7620. The giving of oral instructions is authorized only in an exceptional case where the parties voluntarily assent thereto, and should be given only after such consent is obtained and entered on the minutes, at such time and in such manner as will not operate to the prejudice of the rights of either party. Forzen v. Hurd, 20 N. D. 42. Ohio. It is error to charge orally after a timely request to charge in writing. Village of Monroevillei v. Root, 54 Ohio St. 523. Oregon. If either party requires it "and gives notice of intention, charge of court, so far as it relates to the law and the facts of the case, §42] Necessity of Instructing in Writing. 81 tions when a timely request therefor has been made, and in some states instructions may be given orally when so re- quested or when written charges are waived. Such pro- visions are construed as being mandatory in some states, 3 shall be reduced to writing. Lord's L. 1910, § 132 (6). In absence of request, court may instruct in writing or orally at its option. State v. Goff, 71 Ore. 352, 142 Pac. 564. South Dakota. No judge shall in- struct the jury, in civil or criminal cases, unless such instructions are reduced to writing. Comp. L. 1913, vol. 2, p. 366, § 256. In criminal cases, charge must, if requested, be reduced to writing be- fore given, unless by tacit or mutual consent it is given orally, or unless it is fully taken down at the time it is given by a stenographic reporter. Comp. L. 1913, vol. 2, p. 703, § 350. Tennessee. In civil cases, court must charge in writing when so re- quested. Code 1896, §4683. Where felony is charged, every word of the charge must be in writ- ing. Code 1896, §7186; Acts 1873, ch. 57. Texas. The charge shall be in writing and signed by the judge. Rev. Civ. St. 1911, p. 433, art. 1971. See Sharman v. Newsome & John- ston, 46 Tex. Civ. App.'lll. Written instruction limiting the purpose for which evidence may be considered should be given, but the giving of oral charges is not error where no request for a written charge was made. La Flour v. State, 59 Tex. Or. App. 645. Utah. Court shall instruct the jury in writing * * * provided that with consent of the parties en- tered on the minutes, the court may Blashfield Vol. I— 6 instruct orally, in which case the instructions shall be taken down by the stenographer. Comp. L. 1907, § 3147. See also, § 3150. Instructions shall be in consecu- tively numbered paragraphs and shall be read to .the jury without oral comment or explanation. Comp. L. 1907, §3149. Washington. If there is no re- quest for a charge to be in writing, or if no instruction is requested, the charge may be oral. Ball Code 1897, § 4993. Oral instructions may be given where the parties stipulate that the instructions may be "partly oral and partly in writing." Wheeler v. Hotel Stevens Co., 71 Wash. 142, Ann. Cas. 1914 C 576n, 127 Pac. 840. West Virginia. On the trial of issues before juries in all civil and criminal cases, all instructions of the court to the jury shall be plainly written in longhand or typewriting, before given to the jury * * * provided that the court may instruct the jury to disregard incompetent testimony without reducing the in- struction to writing. Acts 1907, Reg. Sess. ch. 38, § 1. Wisconsin. Instructions must be in writing whether requested or not. St. §2853. Wyoming. Instructions requested or given shall be in writing. Comp. St. 1910, §§ 4499, 6235. 3 — The statutory requirement is mandatory, and error follows from a refusal to comply therewith. 82 InSTKTJCTIONS TO JUEIES. [§42 although in some states there are decisions holding such a statute to be directory.* While the provisions as to instructing in writing in crim- inal cases are usually similar to those governing civil cases, some statutes require instructions to be in writing in felony cases, 5 and it has been held in misdemeanor cases that the court is not required to charge in writing, except at the request of counsel, and then only to give such proper charges as are prepared in writing and asked to be given. 6 It has also been held that a written charge is unneces- Mclntosh v. Sawmill Phoenix, 49 Wash. 152, 94 Pac. 930. Act of 1855, § 1 (Cal. Code Civ.' Proc, § 608), requiring instructions to be written, is mandatory. People v. Beeler, 6 Cal. 246. The giving of an oral instruction in a case where the statute requires written instructions constitutes er- ror for which the judgment may be set aside or a new trial granted, the statute being regarded as manda- tory. Arkansas. Mazzia v. State, 51 Ark. 177; National Lumber Co. v. Snell, 47 Ark. 407; Anderson v. State, 34 Ark. 257. California. People v. Hersey, 53 Cal. 575; People v. Sanford, 43 Cal. 29; People v. Beeler, 6 Cal. 246. Connecticut. Wilson v. Town of Granby, 47 Conn. 59, 36 Am. Bep. 51. Illinois. Ellis v. People, 159 111. 337. Indiana. Bradway v. Waddell, 95 Ind. 170; Shafer v. Stinson, 76 Ind. 376; Toledo & W. By. Co. v. Daniels, 21 Ind. 260; Bising Sun & V. Turn- pike Co. v. Conway, 7 Ind. 187: Kansas. City of Atchison v. Jan- sen, 21 Kan. 560; State v. Potter, 15 Kan. 302; Wheat v. Brown, 3 Kan. App. 431, 43 Pac. 807. Tennessee. Equitable Eire Ins. Co. v. Trustees C. P. Church, 91 Tenn. 135. Contra, Scheuing v. Yard, 88 Pa. 286; Patterson v. Kountz, 63 Pa. 246. 4 — Eefusal to give written charge when requested by both parties held reversible error, statute being man- datory. Sharman v. Newsome & Johnston, 46 Tex. Civ. App. 111. The statute is mandatory in the absence of express waiver. Shar- man v. Newsome & Johnston, 46 Tex. Civ. App. 111. Statute is mandatory in criminal cases but directory in civil cases. People v. Hersey, 53 Cal. 574. Statute requiring instructions to be in writing, in civil cases, is di- rectory. Parker v. Chancellor, 78 Tex. 524; Boone v. Thompson, 17 Tex. 605; Chapman v. Sneed, 17 Tex. 428; Beid v. Beid, 11 Tex. 585; Toby v. Heidenheimer, 1 White & W. Civ. Cas. Ct. App. (Tex.) §795; contra, Balph Levy & Co. v. McDow- ell & Field, 45 Tex. 220. 5 — See statutes cited in § 42, note 2. 6 — Greer v. State, 62 Tex. Cr. App. 81; Garrison v. State, 54 Tex. Cr. App. 600. § 43] Necessity of Instructing in Writing. 83 sary in misdemeanor cases, and a request therefor may be refused. 7 The object of statutes requiring instructions to be written is to insure the preservation of the instructions verbatim as they come from the lips of the judge, so that there will be no dispute as to their form or substance in the subsequent proceedings in the case. 8 § 43. Effect of presence of stenographer or reporter. In the statutes referred to in the prior section, it will be noted that there are provisions requiring instructions to be taken down by the official stenographer as well as pro- visions that the requirement that the instructions shall be in writing shall not apply when an official stenographer is present. 9 And it has been held that the statutes only re- quire written instructions in cases where the instructions are not taken down by the stenographer. 10 Where the reporter is present, his failure to perform his duty and take down fully and correctly the charge as given will not be imputed as error of the court. In such case the judge may put into the bill of exceptions what was actually said. 11 In one state it has been said that the requirement of the statute is fully satisfied when the charge of the court is taken down by a stenographer in the employ and under the control of both parties to the action, 12 but the court is not 7— Dobson v. State, 5 Lea -(Tenn.) 39 Pao. 24; People v. Ferris, 56 Cal. 271. 442. 8 — California. People v. Leary, An oral charge given in a criminal 105 Cal. 486, 39 Pac. 24; People v. case when the official reporter is Hersey, 53 Cal. 574. absent, is error. People v. Leary, Idaho. State v. Preston, 4 Idaho 105 Cal. 486, 39 Pac. 24. 215, 38 Pac. 694. 11— People v. Cox, 76 Cal. 281, 18 Nevada. State v. Stewart, 9 Nev. Pac. 332. Explained in People v. 120. Leary, 105 Cal. 486, 39 Pac. 24. North Carolina. Jenkins v. Wil- 12 — Sturgeon v. Tacoma Eastern mington & W. E. Co., 110 N. C. 442. E. Co., 51 Wash. 124, 98 Pac. 87; 9 — See statutes cited in § 42, note Collins v. Huffman, 48 Wash. 184, 2. 93 Pac. 220. 10— People v. Leary, 105 Cal. 486, 84 Instructions to Juries. [§43 relieved, from its obligation to give the charges in writing when there are two stenographers, employed by the differ- ent parties to the action. 13 Where a defendant has the positive right to written charges, the taking down by a reporter of the oral instruc- tions does not constitute them written charges; 14 and it has been held that a statute requiring instructions to be in writing is not repealed by a subsequent statute providing for an official stenographer, and requiring him to correctly report all the proceedings of the court. 15 § 44. When statutes apply — What are instructions. . It is not every remark by the judge to the jury that is required to be in writing, inasmuch as such remarks or com- munications are not necessarily instructions. It is held quite uniformly that the statutes only apply to "instruc- tions" technically so called, 16 and "the mere fact that an oral communication has passed from the court to the jury is not of itself proof that the statute has been disre- garded." 17 The general rule is that in order to fall within the statu- tory requirement, the remarks of the judge must amount to a positive direction to the jury as to the principles of law applicable to the case on trial, and the evidence adduced. 18 13 — Sturgeon v. Tacoma Eastern 16 — "The word 'charge,' as used E. Co., 51 Wash. 124, 98 Pac. 87; in the statutes, is not intended to Mcintosh v. Sawmill Phoenix, 49 include any and every question and Wash. 152, 94 Pac. 930; Collins v. answer passing between the court Huffman, 48 Wash. 184, 93 Pac. and j ury .»» Millard v. Lyons, 25 220; State v. Mayo, 42 Wash. 540, wis gi6 7 Ann. Cas. 881, 85 Pac 251. 17-State v. Potter 15 Kan. 302. 14-Le.neu, v. State, 176 Ind. ^^ y ^.^ ^^ ^ 15-Bowden v. Achor, 95 Ga. 243. 0kla " 424 > 65 Pac - 927 > 63 Pae - 969 J See also, Rich v. Lappin, 43 Kan. Hasbrouck v. City of Milwaukee, 21 666, 23 Pac. 1038; Wheat v. Brown, WlB - 217 - 3 Kan. App. 431, 43 Pac. 807. But Instructions within the meaning see State v. Preston, 4. Idaho, 215, of the statute have reference to the 38 Pac. 694. law bearing upon the merits of the §44] Necessity oe Instructing in Whiting. 85 Thus, it has been said that the statute requiring the charge to be in writing means the statement of the issues and of the law governing the case as given to the jury when the case is ready for final submission. 19 Instructions, proper, are directions as to the law of the case, 20 and a statement not bearing upon questions of law or fact involved in the issue is not to be taken as a part of the instruction. 21 So it has been held that a peremptory instruction upon an uncontradicted fact need not be in writing, since such direction is not an instruction upon any question of law in- volved. 22 On the other hand, a statement that a theory is not tena- ble has been held to be an instruction which must be writ- controversy. Lett v. Eastern Moline Blow Co., 46 Ind. App. 56. Statute requires written instruc- tions on "points of law." Baxter v. Magill, 127 Mo. App, 392. ' ' Only when the statements of the court amount to a positive direction as to the law of the case will such statements be regarded as an in- struction within the meaning of the statute requiring instructions of the court to.be. in writing." Boggs v. United States, 10 Okla. 424, 65 Pac. 927, 63 Pac. 969. 19— State v. Smith, 132 Iowa 645. 20 — Georgia. Fry v. Shehee, 55 Ga. 208. Illinois. Ellis v. People, 159 111. 337; Illinois Cent. E. Co. v. Wheeler, 149 111. 525. Indiana. Dodd v. Moore, 91 Ind. 522; Lawler v. McPheeters, 73 Ind. 579; Stanley v. Sutherland, 54 Ind. 339. North Carolina. Jenkins v. Wil- mington & W. R. Co., 110 N. C. 438; Dupree v. Virginia Home Ins. Co., 92 N. C. 417/ Statements of rules of law gov- erning the matter in issue or the amount of recovery are instructions. Bradway v. Waddell, 95 Ind. 170; Lawler v. McPheeters, 73 Ind. 579; Stanley v. Sutherland, 54 Ind. 339. What the court may say in regard to the principles of law applicable to the case on trial and the evidence adduced is a part of the charge, and must be in writing, if a written charge is required. Millard v. Lyons, 25 Wis. 517; Hasbrouck v. City of Milwaukee, 21 Wis. 217. An instruction which is not to govern the jury, as a matter of law, as to the substance of their verdict, need not be in writing. Burns v. People, 45 111. App. 70. 21 — Lehman v. Hawks, 121 Ind. 541; Lawler v. McPheeters, 73 Ind. 577; McCallister v. Mount, 73 Ind. 559; Hasbrouck v. City of Milwau- kee, 21 Wis. 219. 22— Derby v. Peterson, 128 111. App. 494. 86 Instructions to Jueies. [§44 ten. 23 In the following sections 24 the questions as to what statements constitute "instructions" will be considered in detail. § 45. Remarks during course of trial — Statements not made to jury. While it has been held that a remark made by the court ' in the hearing of the jury has the same effect as if given as a formal instruction, 25 it has also been held that a state- ment addressed to counsel of one of the parties, in the hear- ing of the jury, of the reasons for refusing instructions requested is not an instruction within the statutes requiring the charges to be written. 26 Other decisions hold that remarks not addressed to the jury are not prejudicial, 27 and that such remarks will not be presumed to have influenced the verdict. 28 It has also been held that a statute as to written instruc- tions was not intended to deprive the court of the power 23 — The following statement has edge that there was twelve hundred been held to be an instruction, dollars and interest due the said within the rule requiring instrue- railroad company that has not been tions to be written, viz.: "This paid," it was held that, as the re- idea of an accident, which has been mark was not addressed to the jury, urged by the defense, amounts to and as there was no conflict in nothing, and is not tenable. There the evidence as to the fact that the is no evidence to show it was an amount named was in fact due the accident. On the contrary, it shows railroad company, and the question there was a scuffle, and that the de- of indebtedness was fairly submitted fendant persisted in holding on to to the jury, no prejudice could have the pistol." People v. Bonds, 1 resulted from the remark. Cedar Nev. 33. Rapids, I. P. & N. W. Ry. Co. v. 24 — Sections 40-50, post. Cowan, 77 Iowa, 535. 25 — People v. Bonds, 1 Nev. 33. 28 — A remark of the court, not 26 — Hasbrouck v. City of Milwau- designed as an instruction to the kee, 21 Wis. 219. jury, nor addressed to them, nor of 27 — Where a stipulation in an- a nature to be considered while they other case was introduced in evi- were deliberating upon their verdict, dence during the progress of a trial, will not be presumed to have influ- and the court said, in the presence enced their verdict. Cormac v. of the jury, "I shall hold that by Western White Bronze Co., 77 Iowa that stipulation defendants acknowl- 32. ^ § 46] Necessity of Instructing in Writing. 87 to administer admonitions to the jury during their delib- eration, in case of rumored misconduct, when deemed neces- sary to the securing of a fair trial. 29 "The court may properly make oral statements to the jury in reference to * * * the manner in which the trial has been conducted, the behavior of the jury, or counsel, or parties, or any other oral statement which is not fairly and strictly a direction or instruction upon some question or rule of law involved in or applicable to the trial, or a comment upon the evidence. " 30 So, it has been held not improper to apologize, orally, for the impatience of the court at the length of the trial, 31 or to give oral directions to counsel as to the scope of their arguments, 32 as such statements or directions are not in- structions. §46. Statements as to evidence — Recapitulation of evi- dence. Statutory provisions requiring instructions to be in writ- ing have been held not to apply to remarks calling the jury's attention to the purpose for which certain evidence is admitted, 33 to remarks as to the admissibility of evi- 29 — Rem. & Bal. Code Wash., nothing I have said was intended to §§ 339, 395; Maryland Casualty Co. influence unduly the verdict of the v. Seattle Elec. Co., 75 Wash. 430, jury, and I do not wish any juror 134 Pac. 1097. to be influenced by it in the least. ' ' 30— State v. Potter, 15 Kan. 302. Hasbrouck v. City of Milwaukee,, 21 31 — The following oral remarks ~Wia~ 227 were held not erroneous: "Before 32 _Tne court may orally direct reading the instructions to you, I coungel to confin(j ^ entg desire to say that the trial has been , >.. . , „ . ,.,.., , , ,. . to the points of law which it deems a long and tedious one, occupying . ■*. , , . . . . . , . controlling, and may state what one day longer in taking the evi- . ' dence than any case which has been those P omts are - Such directions tried in this circuit for seven years. are not instructions. O'Hara v. During the long and fatiguing trial, Kin & 52 m - , 304 - the court may have become impa- 33— The court may state orally tient at the delay of the counsel, the purpose for which evidence was and made remarks that may pos- introduced. Farmer v. Thrift, 94 sibly have influenced some juror. I Iowa 374; Green v. Com., 17 Ky. wish it especially, understood that Law Rep. 943. 88 Instructions to Juries. [§46 dence, 34 to admonitions to disregard certain evidence ruled out, 35 or to a statement withdrawing evidence. 36 In some states it has been held, however, that communications as to the effect or noneffect, propriety or impropriety, of parts of the evidence should be in writing. 37 A statement by the court to the jury that, "the def end- Explanations or statements made by the court during the trial to the jury, in order that they may under- stand the purpose and condition on which the evidence is admitted, are not "instructions" which, on re- quest, should be in writing. Stanley v. Sutherland, 54 Ind. 339. An oral statement by the judge during the trial, limiting the appli- cation of the evidence and stating the grounds and purposes for which it is admissible, is not reversible error. State v. Becton, 7 Bast. (Term.) 139. The statute requiring instructions given by the court of its own motion to be in writing (Acts 1903, p. 338, ch. 193, § 1) only applies to instruc- tions given at the close of the argu- ment and "not to what the court may say during the trial calling the at- tention of the jury to the purpose for which certain evidence is ad- mitted. Providence Washington Ins. Co. v. Wolf, 168 Ind. 690, 120 Am. St. Eep. 395. Oral remarks made in pursuance of a request of the district attorney to caution the jury as to the purpose for which evidence is admissible do< not constitute an instruction but are merely an oral direction which .does not modify or qualify other instruc- tions given. Irving v. People, 43 Colo. 260, 95 Pac. 940. See also, Cedar Eapids, I. F. & N. W. Ey. Co. v. Cowan, 77 Iowa 535, where re- marks as to the effect of a stipula- tion were held harmless error. 34 — >"A casual remark by the presiding judge to counsel, pending the discussion of a legal question, as to the admissibility of evidence, though made in the hearing of the jury, is not revisable on error as a ruling or charge, when the record shows that it was nqt intended for the jury, and it does* not appear to have influenced their verdict." Meinaka v. State, 55 Ala. 47. The court may give its opinion orally, of the law governing the ad- missibility of testimony in the pres- ence of the jury, and although all instructions were requested to be in writing. Fruchey v. Eagleson, 15 Ind. App. 88. See also, McCormick v. Ketchum, 48 Wis. 643. 35 — An admonition by the court that certain evidence must nQt be considered is not required to be in writing. Krause v. Eedman, .134 Iowa 629; State v. Smith, 132 Iowa 645. 36 — "Oral directions to the jury to reject evidence * * * are not 'instructions.' " Indiana. Madden v. State, 148 Ind. 183; Bradway v. Waddell, 95 Ind. 170; Lawler v. McPheeters, 73 Ind. 579; Stanley v. Sutherland, 54 Ind. 339. Missouri. State v. Good, 132 Mo. 114. 37— Peck v. Springfield Traction Co., 131 Mo. App. 134. §46] Necessity of Instructing in Whiting. 89 ant's attorney has let down the fence, and that all is now before the jury, " is an oral instruction. 38 And it has been held error to give an oral statement as to the right of the jury to disbelieve evidence, 39 or to give an oral direction to try the case on the evidence. 40 The question as to the existence of evidence proving an instrument as a last will requires written instructions, 41 and the remark of a court, as to certain evidence, that if these things were true "it would follow as a matter of law that the act of the agent was the act of defendant," has been held error, as the remark, though correct, should have been embodied in a written charge. 42 It has also been held error to charge orally as to whether the evidence raises a reasonable doubt. 43 While there are decisions to the contrary, 44 it is usually held that the recapitulation of the evidence need not be in writing, 45 and it is not error to orally repeat admissions Com., 3 Bush 38 — Coppage (Ky.), 532. 39 — After the court had finished its charge, one of the jurors asked whether they must believe all the testimony, or could disbelieve any part of it. The court answered orally that they could reject, etc., and it was held reversible error. Dixon v. State, 13 Fla. 637. 40 — A statement by the judge to the jury, before delivering his writ- ten charge, that it is their duty to try the case on the sworn testimony, and to disregard their personal knowledge, is an instruction, and must be in writing. Equitable Fire Ins. Co. v. Trustees C. P. Church, 91 Tenn. 135. 41— Mayville v. French, 246 Til. 434. 42— State v. Potter, 125 Mo. App. 465. 43 — Where there was a request for written instructions, it was held error to charge the jury orally that, "if the state has failed to make out a case against this defendant beyond a reasonable doubt or if the defendant, by his evidence, has raised a reasonable doubt, then your verdict will be as follows (reading form of verdict for defendant)." Stephenson v. State, 110 Ind. 358, 59 Am. Eep. 216; Smurr v. State, 88 Ind. 504. 44 — "When the court has been requested to give the instructions to the jury in writing, it is errone- ous to recapitulate the substance of the testimony verbally, notwith- standing the court states that the jury should not take its state- ments." McClay v. State, 1 Carter find.), 385. 45 — Sawyer v. Roanoke Railroad & Lumber Co., 142 N. C. 162; Jen- kins v. Wilmington & W. E. Co., 110 N. C. 442; Dupree v. Virginia Home Ins. Co., 92 N. C. 417. 90 Instructions to Juries. ' [§46 in evidence, which are made by a party to the action. 46 § 47. Reading statutes to jury or reading from books and papers. Some courts hold, without qualification, that it is a vio- lation of the statute and error for the court to read from books and papers — even from the statutes — where such ex- tracts are not copied into the written charge. 47 This is upon the theory that it is only by a strict enforcement of the statute that the identity of the charge can be secured. 48 On the other hand, it is frequently held that it is not a violation of the statute to read from the statutes of the state, without otherwise embodying such statutes in the i Where the court was requested to instruct in writing, it was error to read a section of a statute to the .jury, instead of copyirig the same and giving it as a part of the writ- ten charge. Chicago & E. R. Co. v. Murphy, 54 Ind. App. 531. 48 — "Where the request to in- struct in writing is made, it is not complied with by reading from the statutes of the state or from other law books. This is not reducing the charge to writing, as required by the statute. It is proper, of course, for the court to make extracts which are law and applicable to the case from any law book, and to copy the same in its written charge, and to read the charge containing such ex- tracts to the jury. The extracts from books given in this way to the -jury become part of the court's written charge. The identity of the charge is secured. But if the Court may, in charging the jury, where there is a request to instruct in writ- ing, read from law books, reading a few lines here and a few there, omitting occasionally a word or a sentence not deemed applicable to 46 — Where, in an action for per- sonal injuries, the defendants at the close of the trial admit that the premises where the accident occurs were owned and controlled by them, and the court merely repeats, in the hearing qf the jury and of the coun- sel on both sides, so that the jury can understand what it is, the statute prohibiting oral instructions is not violated. Hinckley v. Horaz- dowsky (111.), 23 N. E. 338, adhered to on rehearing, 133 111. 359, 8 L. R. A. 490, 23 Am. St. Rep. 618. 47 — Indiana. Sellers v. City of Greencastle, 134 Ind. 645; Bradway v. Waddell, 95 Ind. 170; Smurr v. State, 88 Ind. 504; Bottorff v. Shel- ton, 79 Ind. 98. Iowa. State v. Birmingham, 74 Iowa 407; Hall v. Carter, 74 Iowa 364. Tennessee. Manier v. State, 6 Baxt. 595, overruling Logston v. State, 3 Heisk. 414. See also, People v. Sanford, 43 Cal. 29, which "case, however, is overruled by later cases. Reading a statute to the jury con- stitutes an instruction. Bottorff v. Shelton, 79 Ind. 98. §48] Necessity of Instructing in Wbiting. 91 written charge. 49 This seems to proceed upon the ground that the statutes of the state are sufficiently fixed, perma- nent, and known to come within the spirit of the statute requiring instructions to be in writing, for, in preparing a bill of exceptions, they are always conveniently accessible. 50 In this connection, a distinction has been drawn between reading from the statutes and reading from other books or papers; B1 and it has also been admitted that the case might be different where the jury are to take the charge with them into the jury room. 52 § 48. Statements as to duty and conduct of jurors and their qualifications. Remarks made to the jury upon matters not relating par- ticularly to the case on trial, and of a general character as the ease, » party would be put to much and, perhaps, fruitless effort in collecting together the court's charge. ' ' Smurr v. State, 88 Ind. 509. The error may, of course, have been- harmless. See Hall v. Carter, 74 Iowa 364.. In Texas, the question has been decided both ways. See Carr v. State, 41 Tex. 544, and Hobbs v. State, 7 Tex. App. 117. It is reversible error to read the ' complaint and answer to the jury from the originals, without oral ex- planation, without copying them into the instruction. Woodruff v. Hensley, 26 Ind. App. 592. 49 — Arkansas. Palmore v. 'State, 29 Ark. 248. California. People v. Lewis, 64 Cal. 401, 1 Pac. 490; People v. Brown, 59 Cal. 345; People v. Mortier, 58 Cal. 262. Kansas. State v. Mortimer, 20 Kan. 93. Louisiana. State v. Thomas, 34 La. Ann. 1084. Michigan. Swartwout v. Michi- gan Air Line E. Co., 24 Mich. 389. Nevada. State v. Stewart, 9 Nev. 120. But see Josselyn v. McAllister, 22 Mich. 300. 50 — Palmore v. State, 29 Ark. 268; Swartwout v. Michigan Air Line B. Co., 24 Mich. 389; State v. Stewart, 9 Nev. 120. In Josselyn v. McAlli- ster, 22 Mich. 306, the question was raised whether the entire charge was not vitiated by the course of the judge in reading orally from a text- book a passage, with a statement that he would afterwards insert it in the written charge, instead of embodying it there in the first in- stance. The court, however, re- fused to decide the question, as no objection was made until after the verdict. A contrary conclusion was reached in People v. Sanford, 43 Qal. 29, but this was overruled by later cases. 51 — Swartwout v. Michigan Air Line B. Co., 24 Mich. 389. 52 — Swartwout v. Michigan Air 92 Instructions to Juries. [§48 to their duties as jurors, are not a part of the instructions required by the statute to be in writing, and such remarks will not be a good ground for reversal merely because made orally. 53 It is not improper to state orally that the jury are to pay particular attention to the instructions, 54 to give oral directions as to their conduct while deliberating, 55 or to verbally impress upon the jury the importance of agreeing upon a verdict. 56 Line E. Co., 24 Mich. 389; State v. Stewart, 9 Nev. 120. See Manier v. State, 6 Baxt. (Tenn.) 595. See also, Hopt v. People, 104 U. S. 631, 26 L. Ed. 873. 53— See Moore v. City of Platte- ville, 78 Wis. 644; State v. Glass, 50 Wis. 218, 36 Am. Rep. 845; Seymour v. Colburn, 43 Wis. 67; Grant, v. Connecticut Mut. Life Ins. Co., 29 Wis. 125; Millard v. Lyons, 25 Wis. 516; Hasbrouek v. City of Milwau- kee, 21 Wis. 238. Oral statements as to the form of the verdict, the manner in which the trial has been conducted, the be- havior of the jury or counsel or parties, are proper, as is " any other oral statement which is not fairly and strictly a direction or instruc- tion upon some question or rule of law involved in or applicable to the trial, or a comment upon the evi- dence." State v. Potter, 15 Kan. 302. A direction to the jury as to their duties not involving any principle of law affecting the merits of the case cannot be regarded as an in- struction within the meaning of the statute. Lett v. Eastern Moline Plow Co., 46 Ind. App. 56. The statutes do not forbid the Court to direct the jury ore tenus about their ordinary duties as jurors. Baxter v. Magill, 127 Mo. App. 392. 54 — An admonition by the court, before reading the charge to the jury, that they are to pay particular and careful attention to each word and sentence of the charge, so that they may be advised as to the law of the case, is not a part of the charge, and may be made orally. Sargent v. State, 3S Tex. Cr. App. 325. 55 — Oral directions by the court to the jury to retire with their bailiff, to separate for their meals, to seal up their verdict, to abstain from talking among themselves or with others, to sign their general verdict, or to answer interrogatories, are not instructions, within the mean- ing of the statute requiring the court to instruct the jury in writing when so requested by a party. Leh- man v. Hawks, 121 Ind. 541; Trent- man v. Wiley, 85 Ind. 33; McCallister v. Mount, 73 Ind.. 559. An oral statement to the jury that it would be improper for them to examine the scene of the accident except by agreement of counsel, and in charge of an officer, and that they must keep away, -in the absence of such agreement, is not error. Pioneer Fireproof Const. Co. v. Sunderland, 188 111. 341. 56 — The court may verbally im- press upon the jury the importance of agreeing upon a verdict, point out 49] Necessity of Instructing in Writing. 93 Also, remarks on the voir dire as to the qualifications of jurors do not violate the statutory prohibition. 57 It has been held, however, that an address by the trial judge re- ferring to the institution of trial by jury and to the duty of the jury with respect to the case on trial is an oral instruc- tion and erroneous. 58 § 49. Directions as to verdict. Usually a statement as to the duty of the jury to agree upon a verdict, 59 a direction to answer interrogatories, 60 or a direction to retire for further consideration of the ver- dict, 61 , need not be in writing. the expense to the county and to the parties which the suit involves, and ask the individual jurors to listen to the arguments of the others. Moore v. City of Platteville, 78 Wis. 644; cf. Equitable Fire Ins. Co. v. Trustees C. P. Church, 91 Tenn. 135. See also, § 49, post. 57 — 'Explanatory remarks to the jury, on their voir dire examination, as, to what facts will or will not disqualify them, do not violate the statutory prohibition against oral instructions. Oberbeck v. Mayer) 59 Mo. App. 289. 58 — Jarnecke v. Chicago Consol. Traction Co., 150 111. App. 248. 59 — An oral admonition as to the importance of- finding a verdict is not an instruction, within the rule. Strepey v. Stark, 7 Colo. 614, 5 Pac. Ill; Moore v. City of Platteville, 78 Wis. 644. See also, State v. Jones, 7 Nev. 408. The mere fact that the court made certain oral statements to the jury in relation to their agreeing upon a verdict, after they had retired to consider their verdict, and had been returned into court, is not such an instruction as is required to be in writing by Crim. Code Kan. § 236, where the court did not direct them upon any rule of law involved in the trial, or make any comment upon the testimony. State v. McLafferty, 47 Kan. 140, 27 Pac. 843. An oral statement to the jury in the nature of an argument upon the facts, and in regard to the duty of the jury to agree upon a verdict, is an instruction, within the meaning of the statutes, and is erroneous. City of Abingdon v. Meadows, 28 111. App. 442. 60 — An oral statement by the judge to the jury, directing them to answer certain interrogatories, is not an instruction, within the meaning of the law, and there is no error in making it after a request to instruct in writing. Trentman v. Wiley, 85 Ind. 33; McCallister v. Mount, 73 Ind. 559; Judge v. Jordan, 8i Iowa 519. 61 — A direction to the jury to retire and consider further of their verdict, and answer an interrogatory previously propounded to them, is not such an instruction as must be in writing. Judge v. Jordan, 81 Iowa 519. 94 Instettctions to Jtjeies. [§49 But it has been held a violation of the statute to instruct orally as to the impropriety of certain modes of arriving at the amount of a verdict. 62 According to some decisions, a direction to find a verdict for one party, when such direction is proper, is not an in- struction, and need not be in writing, 63 but other decisions hold that such direction is an instruction. 64 A direction as to the form of the jury's verdict is not an instruction which must be written. 65 The jury may be told orally that they must find one of three verdicts, tie forms of which are submitted to them, 66 and a statement that if the verdict is for the plaintiff, it should be for the amount claimed, and if for the defendant, 62 — Illinois Cent. B. Co. v. Ham- mer, 85 111. 526. 63— Leggett & Myer Tobacco Co. v. Collier, 89 Iowa 144; Young v. Burlington Wire Mattress Co., 79 Iowa 415; Milne v. Walker, 59 Iowa 186; Stone v. Chicago & N. W. E. Co., 47 Iowa 82, 29 Am. Eep. 458; Grant v. Connecticut Mut. Life Ins. Co., 29 Wis. 125. 64 — Greenwich Ins. Co. v. Eaab, 11 111. App. 636. The statute applies to an affirma- tive charge or direction to the jury to find a verdict for one party or the other. Citizens' Bank of Bain- bridge v. Fort, 142 Ga. 611. 65 — California. People v. Bonney, 19 Cal. 426. Illinois. Illinois Cent. R. Co. v. Wheeler, 149 111. 525, aff'g 50 111. App. 205; Economy Light & Power Co. v. Hiller, 113 HI. App. 103, aff'd 211 111. 568. Indiana. Lehman v. Hawks, 121 Ind. 541; Bradway v. Waddell, 95 Ind. 170; McCallister v. Mount, 73 Ind. 559; Stanley v. Sutherland, 54 Ind. 339; Indianapolis & N. W., Traction Co. v. Henderson, 39 Ind. App. 324. Kansas. State v. Potter, 15 Kan. 302. Oral statements with reference to the form of the jury's verdict which do not contain directions upon some question of law, or comment on the evidence, are not instructions within the statute. Douglas v. Territory, 1 Okla. Cr. App. 583, 98 Pac. 1023. Held not reversible error to give oral instructions as to the form of a jury 's verdict, since if jury" returned informal verdict court could have had it changed, under statute, with jury's consent. Eagsdale v. State, 61 Tex. Cr. App. 145. Contra, Helm v. People, 186 111, 153. The action of the trial judge in instructing orally in regard to the verdict the jury were authorized to render, held fatal error. Simmons v. State, — Miss. — , 65 So. 511. 66 — State v. Glass, 50 Wis. 218, 36 Am. Rep. 845. §50] Necessity of Instructing in Writing. 95 it should simply be for the defendant, need not be in writing. 67 A direction to sign the general verdict is not an instruc- tion, 68 and where the jury return with an informal verdict, the court may direct the jury orally to retire and bring in a verdict covering the issues in the case, such a statement not being an exposition of any principle of law to be ap- plied to the case. 69 So, a direction to retire and return a verdict in accordance with the previous charge does not constitute an instruction and need not be in writing. 70 Also; an oral charge that it is the duty of the jury to answer each interrogatory fully under the evidence, and that it must be signed by the foreman and returned, with the gen- eral verdict, has been held not an instruction within the meaning of the statute. 71 § 50. Remarks while giving instructions — Questions of jurors. In giving instructions it has been held unnecessary to reduce to writing remarks of the court as to his right to instruct, 72 language leading up to an instruction, 73 a state- 67 — Jenkins & Reynolds Co. v. Lundgren, 85 111. App. 494. 68 — MeCallister v. Mount, 73 Ind. 559. 69 — Lehman v. Hawks, 121 Ind. 541; Bradway v. Waddell, 95 Ind. 170; State v. Potter, 15 Kan. 302. 70 — Johnson v. Rider, 84 Iowa 50. 71 — Lett v. Eastern Moline Plow Co., 46 Ind. App. 56. 72 — A statute requiring a charge "to be in writing is not violated by the judge telling the jury that he eould not instruct them as to mat- ters of fact." State v. Waterman, 1 Nev. 543. 73 — It was held in People v. Cox, 76 Cal. 281, 18 Pac. 332, that, al- thougB it is error to charge a jury in a criminal case orally, "yet, where the record shows that the language used, which was not taken down by the reporter, merely led up to an instruction which was properly taken down, and did not affect nor in any way qualify the charge which was taken down, it is not ground for reversal. ' ' If any more absolute rule was intended to be announced in People v. Hersey, 53 Cal. 574, it is to be taken as modified by what was held in the Cox case. 96 Instructions to Juries. [§50 ment as to who requested the instruction, 74 or the court's reply to an exception to a charge. 73 As to questions asked by jurors, it has been said that: "Where a juror propounds a question to the court, it may make a direct answer without reducing the same to writing, provided, in so doing, it does not make an independent statement of a rule of law. In other words, where the ques- tion of the juror is the full statement of the rule, and the answer is no more than an affirmation or denial, such affir- mation or denial need not be reduced to writing before it is given." 76 Thus it has been held not improper to answer irrelevant questions, verbally, 77 and the court may orally refuse to answer questions, or state that they are irrelevant. 78 When 74 — It is not reversible error, no harm being shown, for the court to state orally to the jury that ' ' de- fendant 's counsel have asked me to give the following instructions." Sample v. State, 104 Ind. 289, 55 Am. Rep. 211. See also, Dodd v. Moore, 91 Ind. 522; Scott v. Chicago, M. & St. P. E. Co., 68 Iowa 360. 75 — The following remark in reply to an exception to charge, viz.: "I have not attempted to state what the facts are, but simply what is claimed," is in no sense a charge. Malachi v. State, 89 Ala. 134. 76— State v. Potter, 15 Kan. 302. "Where, after having received full written instructions, the jury returned into court, and, in the ab- sence of the official reporter, orally asked the court whether, if the de- fendant was found guilty of murder* in the first degree, the jury could fix the punishment of imprisonment for life, to which the court orally answered that they could, if that was their verdict, and, upon one of the jurymen orally asking -whether the jury could bring in any one of the six verdicts given to the jury which they might agree upon, the cdurt orally answered, 'Yes,' such oral conversation and instruction to the jury causes no prejudicial injury to the defendant, and is not ground for a new trial." People v. Leary, 105 Cal. 486, 39 Pac. 24. 77 — Where the jury returned and inquired/what was the least punish- ment for the offense charged, and the court replied orally that the jury had nothing to do with that matter, but informed them of the penalty, it was held that such remarks were immaterial, and not erroneous for not being in writing. People v. Jackson, 57 Cal. 316. 78 — Where the jury send questions to the judge, who, in reply, states that such questions have nothing to do with the case under the evidence and instructions given, such reply is not an instruction, but rather a re- fusal to instruct, and need not be in writing. Sullivan v. Collins, 18 Iowa 228. So, the court may tell § 52]' Necessity oe Instructing in Writing. 97 no exception is taken to the oral repetition of a portion of a written charge, a party cannot object on appeal. 79 § 51. Sufficiency of request for written charge. It has been noted that some statutes require the instruc- tions to be written only in cases when a timely request has been made therefor. 80 In one case, where a defendant submitted certain re- quested charges and requested the court to "give the fol- lowing instructions and all instructions in writing to the jury," and such charges were refused and the jury in- structed orally, it was held that the practice of requesting written charges in such a manner would not be sanctioned. 81 But in another case, where the facts were almost iden- tical, it was held that the defendant was entitled to a new trial because of the giving of oral charges. 82 § 52. Sufficiency of compliance with statute. A judge need not write the whole charge himself, but may adopt part or all from charges of other judges or from books, provided he puts all in such shape that the jury can take it with them to the jury room; 8S but "it is error to the jury orally that questions asked follows." In that case the defend- by them are irrelevant. Seymour ant was held entitled to a new trial, v. Colburn, 43 Wis. 71. because oral charges were given, 79 — Where the court, having com- even though the trial judge stated plied with a request to give its that through inadvertence in the instructions in writing, repeats a haste of the trial, he did not ob- portion thereof orally, and no ex- serve that the prayer was to put the ception is taken to such repetition, charge in writing, it cannot be objected to in the 83 — Ohio & M. E. Co. v. Sauer, 4 supreme court. Howard v. State, 73 Ohio Cir. Ct. E. 466, wherein the Ind. 528. court, read part prepared by himself, 80 — See § 42, ante, note 2. and part from a copy of a former 81 — Davis v. C. & J. Michel Brew- charge of another judge at a former ing Co., 31 S. D. 284. trial. It was held that error in not 82 — See Sawyer v. Eoanoke Eail- putting the charge in such shape that road & Lumber Co., 142 N. C. 162, the jury could take it with them where the defendant requested the was waived by consent of counsel court "to put its charge to the jury that it need not go into the jury in writing, and in part to charge as room. Blashfield Vol. 1—7 98 Instructions to Juries. [§52 give an instruction, not reduced to writing, otherwise than by reference to a certain page of a law magazine." 84 It is sufficient for the judge to dictate an instruction, and for the attorney to reduce it to writing. It is not necessary for the judge to do it with his own hand. 85 A charge written in English and orally translated for the jury into Spanish, which was their language, is a charge "in writing," within the meaning of the statute, 86 as is also a printed charge, 87 or a charge written in lead pencil. 88 Where instructions are required to be in writing, every word of the charge should be in writing, and it is error to charge the jury orally, either in whole or in part. 89 "Charges in writing should be given literally as they are written." 90 An instruction that the defendant is on trial on the "following indictment," and which says that the 84— Hopt v. People, 104 U. S. 631, 26 L. Ed. 873. 85 — Barkman v. State, 13 Art. 706; Pleasant v. State, 13 Ark. 360. 86 — Territory v. Romine, 2 N. M. 114. 87 — State v. Pooks, 65 Iowa 196; State v. Kelly, 73 Mo. 608; State v. Stewart, 9 Nev. 120. Under a statute requiring instruc- tions to be written, the fact that an instruction is printed and not type- written is not error warranting re- versal. People v. Dressen, 158 111. App. 139. 88 — Harvey v. Tama County, 53 Iowa 228. 89 — Georgia. Wheatley v. West, 61 Ga. 401. Indiana. Davis v. Poster, 68 Ind. 238; Bosworth. v. Barker, 65 Ind. 596; Watts v. Coxen, 52 Ind. 155; Hardin v. Helton, 50 Ind. 319; Gray v. Stivers, 38 Ind. 197; Sutherland v. Venard, 34 Ind. 390; Periter v. State, 33 Ind. 283; Eiley v. Watson, 18 Ind. 291; Rising-Sun & V. Turn- pike Co. v. Conway, 7 Ind. 187. Kansas. State v. Bennington, 44 Kan. 583, 25 Pae. 91. Ohio. Householder v. Granby, 40 Ohio St. 430. Tennessee. Manier v. State, 6 Baxt. 595. "The judge having refused to give instructions asked for by the defendant, and having given oral instructions, subsequently, and be- fore the jury retired, gave the jury written instructions offered by the plaintiff, saying to the jury that the written instructions thus given were substantially the oral instructions he had given, and that he adopted them as the instructions of the court; This is a compliance with the stat- ute, requiring charges in cases of this character to be wholly in writ- ing." Southern Exp. Co. v. Van Meter, 17 Pla. 783, 35 Am. Rep. 107. 90— Morrison v. State, 42 Pla. 149. §53] Necessity of Instbucting in Wbiting. 99 defendant has entered a plea of not guilty to such indict- ment, but which does not actually include the indictment, does not comply with the statute. 91 § 53. Oral explanations, modifications, additions, or with- drawals of written instructions. When the statutes require instructions* to ,be written, it is error to make oral explanations or additions, or to orally modify or illustrate the principles of law laid down, 92 and such rule applies equally to instructions in chief given by the court suo motu, and to instructions asked by a party 1 91 — State v. Birmingham, 74. Iowa 407. 92— Georgia. Willis v. State, 89 Ga. 188; City Bank of Macon v. Kent, 57 Ga. 283. Illinois. Ellis v. People, 159 HI. 337; Ray v. Wooters, 19 111. 82. Indiana. Stephenson v. State, 110 Ind. 358, 59 Am. Bep. 216; Hauss v. Niblaek, 80 Ind. 407; Provines v. Heaston, 67 Ind. 482; Bosworth v. Barker, 65 Ind. 595; Meredith v. Crawford, 34 Ind. 399; Toledo & W. Ey. Co. v. Daniels, 21 Ind. 256; Laselle v. Wells, 17 Ind. 33; Lung v. Deal, 16 Ind. 349; Kenworthy v. Williams, 5 Ind. 375; Townsend v. Doe, 8 Blackf. 328. Iowa. State v. Harding, 81 Iowa 599; Parris v. State, 2 G. Greene 449. Kansas. Bird & M. Map Co. v. Jones, 27 Kan. 177. Kentucky. Payne v. Com., 1 Mete. 378. Nebraska. Hartwig v. Gordon, 37 Neb. 657. # Ohio. Householder v. Granby, 40 Ohio St. 430; Rupp v. Shaffer, 21 Ohio Cir. Ct. E. 643, 12 Ohio Cir. Dec. 154. Texas. McMahon v. State, 1 Tex. App. 102. ' ' A judge on the trial of a cause has no authority to affect or change the law, as stated in written in- structions, by any statement not in writing. It is error for the court rto instruct the jury orally, or to orally explain or modify an instruc- tion. ' ' Bradway v. Waddell, 95 Ind. 174. Instructions required to be in writing cannot be orally qualified or modified. Dorsett v. Crew, 1 Colo. 18. . , It is error to make an oral ex- planation of a written charge. Maz- zia v. State, 51 Ark. 177; People v. Payne, 8 Cal. 341. Communications from the court by way of instructions, or explain- ing instructions should be in writing. Peck v. Springfield Traction Co., 131 Mo. App. 134. An oral preface to an instruction, that the judge had concentrated all there was in the instructions in this one, as embodying all the law neces- sary for the case, when in fact it did not, is error. McEwen v. Morey, 60 111. 32. 100 Instructions to Juries. [§53 and given by the court, 83 or to further instructions given after the recall of the jury, or upon a request of the jury for further instructions. 94 Where the court does not give an instruction on princi- ples of law, but explains orally what he has read, the statute is not violated, 95 and the withdrawal of an instruction may be made by an oral statement which does not bear upon any question of law or fact involved in the issue. 96 Also, a statement that does not modify, explain, add to or take from the written instructions is not an instruction which must be written. 97 § 54. Subsequent reduction of oral charge to writing. In some states it is held that "an oral instruction is not improper where a written one in the same words is imme- 93— Strattan v. Paul, 10 Iowa 139. In a civil action it is error to orally explain or modify an instruction asked by either party, and equally so for the court, on its own motion, to charge the jury orally. State v. Harding, 81 Iowa 599. 94 — California. People v. Wopp- ner, 14 Cal. 437. Georgia. Bowden v. Achor, 95 Ga. 243; Willis v. State, 89 Ga. 188. Iowa. State v. Harding, 81 Iowa 599. Kansas. State v. Stoffel, 48 Kan. 364, 29 Pac. 685. Tennessee. Columbia Veneer & Box Co. v. Cottonwood Lumber Co., 99 Tenn. 122. Where the court finished its charge and one of the jurors asked whether they must believe all the testimony or could disbelieve any part of it, and the court answered orally that they could reject, etc., it was held reversible error. Dixon v. State, 13 Pla. 636. 95 — State v. Marion, 68 Wash. 675, 124 Pac. 125. An oral statement which merely explains but does not qualify the written charge may be given. St. Louis & S. F. R. Co. v. Hall, — Ala. — , 65 So. 33. 96 — In reading the instructions to the jury, the judge read one by mis- take which he had marked "Re- fused." He then said to the jury orally that he had read the instruc- tion by mistake, and they should not consider it. Counsel insist that the court erred in making this state- ment orally. The statement made by the court did not bear upon any question of law or fact involved in the issue, and should not be taken or treated as a part of the instruc- tion. Ohio & M. By. Co. v. Stans- berry, 132 Ind. 533; Bradway v. Waddell, 95 Ind. 170; McCallister v. Mount, 73 Ind. 559; Wall v. State, 10 Ind. App. 530; Edwards v. Smith, 63 Mo. 119. W 97 — Douglas v. Territory, 1 Okla. Cr. App. 583, 98 Pac. 1023. §54] Necessity of Instructing in Writing. 101 diately given to the jury, ns and it lias been deemed a sufficient compliance with the statute to charge the jury orally, and afterwards to reduce the charge to writing." In this connection it may be mentioned that some statutes do not require written instructions when taken down by a reporter.' 1 In many jurisdictions, it is held' not to be a sufficient com- pliance with the statute to charge the jury orally, and sub- sequently reduce the charge to writing, 2 and certainly, the object of the statute, which is to insure the preservation of the instructions for review exactly as they were delivered, would be defeated if the judge could charge the jury orally, and trust to memory to reproduce it in writing afterwards. 3 But this view has been carried to the extent of prohibiting the giving of oral instructions, even where they are taken down by a stenographer, and afterwards accurately tran- 98— Landt v. McCullough, 218 111. 607, afiVg 121 111. App. 328. 99 — National Lumber Co. v. Snell, 47 Ark. 407; Yates v. Kinney, 23 Neb. 648; Powers v. Hazelton & L. By. Co., 33 Ohio St. 429. 1^-See People v. Leary, 105 Cal. 486, 39 Pae. 24; People v. Ferris, 56 Cal. 442; People v. Hersey, 53 Cal. 575; Penberthy v. Lee, 51 Wis. 261. See also, §§42, 43, ante. 2 — Arizona. Territory v. Ken- nedy, 1 Ariz. 505, 25 Pae. 517. Florida. Dixon v. State, 13 Fla. 6::7; Long v. State,- 11 Fla. 295. Indiana. Widner v. State, 28 Ind. 394; Eising-Sun & V. Turnpike Co. v. Conway, 7 Ind. 187. Kentucky. Payne v. Com., 1 Mete. 377. "The judge must commit his in- structions to writing, and read them to the jury from the original manu- script; and where this is not done, the error is not cured by sub- sequently reducing them to writ- ing." Territory v. Duffield, 1 Ariz. 58, 25 Pae. 476. 3— Dixon v. State, 13 Fla. ,650. hi Toledo & W. R. Co. v. Daniels, 21 Ind. 260, the court at the very time the objection was made, set out, in a bill of exceptions, the exact words used by him in his oral charge. It was argued that the purpose of the statute, which was to give the party the benefit of a record containing the words used by the court, had been complied with. But the court said : ' ' We are not inclined to adopt that argument. The statute, as we understand it, requires the court, when asked for written instructions, to reduce them to writing, and then give them, as written, to the jury. This construction of the statute, in its strictness, as a rule of practice, imposes no hardship, and, were the rule once relaxed, it is easy to see that the object of it would be de- feated." 102 Instructions ' to Juries. [§54 scribed. 1 It would seem that, in such a case, the error, if any, should be held to be harmless. 5 § 55. Effect of failure to instruct in writing when required. It has been noted that statutes requiring instructions to be in writing are usually considered mandatory, 6 and ac- cording to such statutes, it is error warranting reversal or a new trial to give oral charges when the statute requires them to be written. 7 4 — Colorado. Crawford v. Brown, 21 Colo. 272, 40 Pac. 692. Georgia. Bowden v. Aehor, 95 Ga. 243. Indiana. Shaf er v. Stinson, 76 Ind. 374. Iowa. State v. Harding, 81 Iowa 599. Kansas. State v. Bennington, 44 Kan. 583, 25 Pac. 91; Eieh v. Lappin, 43 Kan. 666, 23 Pac. 1038; Wheat v. Brown, 3 Kan. App. 431, 43 Pae. 807. But see Union St. By. Co. v. Stone, 54 Kan. 83, 37 Pae. 1012. Contra, State v. Preston, 4 Idaho 215, 38 Pac. 694; Yates v. Kinney, 23 Neb. 648. Where the court disregarded . a request, properly made, to instruct in writing, and caused a ste- nographer to take down its oral instructions, a failure to object to this mode of preserving the evidence of the instructions did not waive the request, nor did such mode satisfy the statute. Under such a request, the instructions must be written, and given as written. Shafer v. Stinson, 76 Ind. 374. See also, Sutherland v. Venard, 34 Ind. 390. But compare State v. Sipult, 17 Iowa 575. 5 — See State v. Preston, 4 Idaho 215, 38 Pac. 694; State v. Sipult, 17 Iowa 575. "Where a simple in- struction, without complication, is given orally to the jury, * * * and is thereafter accurately reduced to writing by the judge without un- necessary delay, no prejudice could result to the complaining party, and the statute directs that no judgment shall be reversed for an error which does not affect the substantial rights of the party appealing." National Lumber Co. v. Snell, 47 Ark. 407. 6 — See § 42, note 4, ante. 7 — In criminal cases, the giving of oral instructions is reversible error. People v. Cox, 76 Cal. 281, 18 Pac. 332; People v. Carrillo, 70 Cal. 643, 11 Pac. 840. - Judgment reversed because of oral instructions. People v. Sanford, 43 Cal. 29; People v. Ah Pong, 12 Cal. 345. Oral instruction held error. Dixon v. State, 13 Pla. 637, 650; Long v. State, 11 Fla. 295. Giving of oral instructions is er- ror. Ellis v. People, 159 111. 337; Illinois Cent. B. Co. v. Hammer, -85 111. 526; Bates v. Ball, 72 HI. 108; McEwen v. Morey, 60 111. 32; Arcade Co. v. Allen, 51 111. App. 305. Under Code, §§ 2784, 4440, requir- ing all instructions to be in writing, it is error to instruct orally. State v. Harding, 81 Iowa 599; State v. §55] Necessity of Instructing in Writing. 103 Even though it be conceded that the bill of exceptions fairly presents the instructions given, yet, that security against mistakes which the statute awards as a right hav- ing been denied, the judgment must be reversed. 8 The error may, however, have been harmless to appellant, in which case it will not be sufficient ground for a reversal. 9 This Birmingham, 74 Iowa 407; Head v. Langworthy, 15 Iowa 235. Noncompliance with the statute requiring instructions to be in writ- ing in criminal eases (Gen. St. 1901, § 4722) is reversible error. State v. Bennington, 44 Kan. 583, 25 Pae. 91. In all criminal cases the instruc- tions must be in writing, and it is error to charge orally. Payne v. Com., 1 Mete. (Ky.) 370. The giving of oral instructions is reversible error. State v. DeMosse, 98 Mo. 340; Hogel v. Lindell, 10 Mo. 483; Walsh v. St. Louis Drayage Co., 40 Mo. App. 339. Giving of oral instructions is re- versible error. Ehrlich v. State, 44 Neb. 810; Hartwig v. Gordon, 37 Neb. 657. Oral charge in criminal cases where felony is charged is reversible error. Manier v. State, 6 Baxt. (Tenn.) 595; Newman v. State, 6 Baxt. (Tenn.) 164. In criminal cases it is reversible error to charge orally. Carr v. State, 41 Tex. 543; Trippett v. State, 5 Tex. App. 595; Winfrey v. State, 41 Tex. Cr. App. 538; Kelley v. State (Tex. Cr. App.), 31 S. W. 390; Harkey v. State, 33 Tex. Cr. App. 100, 47 Am. St. Eep. 19. 8 — Hardy v. Turney, 9 Ohio St. 400. 9 — Arkansas. National Lumber Co. v. Snell, 47 Ark. 407. California. People v.' Leary, 105 Cal. 486, 39 Pac. 24. Georgia. Pry v. Shehee, 55 Ga. 208. Illinois. Greathouse v. Summer- field, 25 111. App. 296. Indiana. Mutual Ben. Life Ins. Co. v. Miller, 39 Ind. 475. Iowa. Hall v. Carter, 74 Iowa 364; State v. Sipult, 17 Iowa 575. Massachusetts. Com. v. Barry, 11 Allen 263. Michigan. O'Donnell v. Segar, 25 Mich. 369. Missouri. Hogel v. Lindell, 10 Mo 484. See also, Allen v. Bundle, 50 Conn 9, 47 Am. Eep. 599. But see Bay v. Wooters, 19 111. 82 wherein it was held that an imma terial modification of a written in struction constituted error. Thus an oral instruction relating wholly to a conceded matter, although er roneous, is not ground for reversal because not prejudicial. Walsh v St. Louis Drayage Co., 40 Mo. App 339. Where plaintiff made out no case a judgment for defendant will not be reversed because oral in structions were given. Greathouse v Summerfield, 25 111. App. 296. Where it plainly appears from the law and the facts disclosed in the record that a new trial would not change the verdict, the giving of an oral instruction is not ground for reversal. Pry v. Shehee, 55 Ga. 208. Where it cannot be ascertained what the oral instructions were, the 304 IxsTRTJCTTOXS TO JURIES. [§55 rule is but simple justice, for the oral instructions may have been given without the solicitation of the party obtaining the verdict, or even against his consent; 10 but the mere fact that the oral instructions given were correct will not pre- vent a reversal." In some states it has been held that the judgment will.be reversed, even though the instructions were favorable to the appellant, 1 - but usually such error is considered harmless. 13 Where, under the statute, the instructions must be in writing, the giving of oral instructions is error, notwith- standing the fact that "it was impracticable to put the whole charge in writing in the time within which it was necessary to conclude the trial." 14 According to the statutes it has been held reversible error to give oral instructions when not agreed to," or when the written charges were not expressly waived, 16 or to charge judgment must be reversed. Aliter where they were preserved* in the bill of exceptions, and were favor- able to or did not affect the party complaining. Hogel v. Lindell, 10 Mo. 484. Where the verdict is unanimous error in giving a verbal instruction as to the verdict! and as to a verdict by nine jurors is not reversible. Baxter v. Magill, 127 Mo. App. 392. 10— Hogel v. Lindell, 10 Mo. 484. 11— Dorsett v. Crew, 1 Colo. 18; City of Atchison v. Jansen, 21 Kan. 500. It is reversible error whether the oral instruction is in itself right, or wrong. Hardin \ . Helton, 50 Ind. ' 320. 12— Widner v. State, 28 Ind. 394. Sep also, Shsfer v. Rtinson, 76 Ind. 376. 13 — The«giving of an oral instruc- tion which is in favor of the party ohjpcting is at most an error with- out prejudice. Irving v. People, 4.'! Colo. 260, 95 Pae. 940. 14 — In such case the .court should direct a mistrial. Jenkins v. Wil- mington & W. R. Co., 110 N. C. 4;JS. 15 — Oral instructions are revers- ible error where counsel do not agree to an oral charge. Wettenjjel v. City of Denver, 20 Colo. 552, 39 Pac. 343; Lee v. Stahl, 9 Colo. 20S, 11 Pac. 77, And such consent must be affirma- tively shown. Dorsett v. Crew, 1 Colo. 18. It constitutes reversible error* to instruct the jury orally over the objection of counsel. Tyler v. ftlc- Kenzie, 43 Cdlo. 233, 95 Pac. 943. 16 — In criminal cases it is revers- ible error to charge orally unless written instructions are expressly waived. Territory v. Kennedy, 1 Ariz. 505, 25 Pac. 517. §55] Necessity of Instructing in Wkixini 105 orally when requested to charge in writing. 17 In the latter case, where the statute in force requires instructions to be in writing only in cases where such a request has been made, in the absence of a request the statute has no application, 18 and the common-law rule 19 prevails. Frifler such circum- stances, it is not error to give oral instructions. 2 " Where 17 — Anderson v. State, 34 Ark. 257. Failure to instruct in writing in civil cases when requested (Code Civ. Proc, §275, subd. 5) is revers- ible error. Rich v. Lappin, 43 Kan. 666, 23 Pac. 1038. In Duggan v. State, 9 Fla. 516, it was held, under Act Jan. 4, 1848, § 8, that a judgment in a criminal case would always be reversed where it did not appear that the charge was reduced to writing and filed in the case. But in the later ease of Luster v. State, 23 Pla. 339, it was lipid that the charge might lie oral, in the absence of a timely request for a charge in writing. Under Georgia Code, § 244, failure to charge in writing when requested is reversible error. Bowden v. Achor, 95 Ga. 243; Fry, v. Shehee, 55 Ga. 208. It is reversible error to charge orally when requested to charge in writing. Stephenson v. State, 110 Ind. 358, 59 Am. Eep. 216; Jaqua v. Cordesman & Egan Co., 106 Ind. 141; Bradway v. Waddell, 95 Ind. 170; Smurr v. State, 88 Ind. 504; Shafer v. Stinson, 76 Ind. 374. The defendant has the positive right to written charges, and rever- sal is proper when an oral charge is given. Lesueur v. State, 176 Ind. 448. Under Rev. St., § 2133, failure to charge in writing upon a timely re- quest is reversible error. State v. Porter, ','>'> La. Ann. 535. Noncompliance with North ('nro lina Code, ' § 414, requiring instruc- tions to be in writing when re- quested, is reversible error. Jenkins v. Wilmington & W. R. Co., 110 N. O. 438; State v. Connelly, 107 N. C. 463; gurrie v. Clark, 90 N. C. 355. Under Ohio Rev. St. 1890, §5190, as amended by Act March 3, 1892 (Bates' Ann. St., § 5190), it is error to charge orally after a timely re- quest to Charge in writing. Village of Monroeville v. Root, 54 Ohio St. 523; Householder v. Granby, 40 Ohio St. 430; Hardy v. Turney, 9 Ohio St. 400. It is reversible error to refuse to charge in writing when requested. Equitable Fire Ins. Co. v. Trustees C. P. Church, 91 Tenn. 135. Refusal to give written charge when requested by both parties held reversible error. Sharman v. New- some & Johnston, 46 Tex. Civ. App. 111. 18— See § 56, post, ' ' Waiver or loss of right to written instruc- tions. ' ' 19— See §42, ante, "Rule at com- mon law. ' ' 20 — Arkansas. Anderson v. State, 34 Ark. 257. Colorado. Bradford v. People, 22 Colo. 157, 43 Pac. 1013. Florida. Luster v. State, 23 Fla. 339. 106 Instructions to Jueies. [§55 the appellant has not himself requested written instructions, the failure of the court to instruct in writing, upon the request of the appellee, is not available error. 21 The violation of the statute is not error when the statute is considered directory, 22 and in some states the giving of oral instructions is not reversible error when they are taken down by the reporter. 23 The sufficiency of compliance with the statute has already been considered. 24 While, error in making an oral explanation of a written charge may be harmless, 25 and it has been held that error in orally modi- fying a written charge must expressly appear by the bill of exceptions to be available, 26 it has also been held that such oral additions to written instructions constitute re- versible error, even though such additions are immaterial. 27 This, however, is at least doubtful; and where the record discloses that oral explanations were made, and states at length what was said, and it appears that it could not and did not modify the effect of any written charge, it has been held not to be reversible error. 28 Indiana. Sutherland v. Hankins, criminal cases is not reversible error 56 Ind. 343. if same are taken down by official Kansas. Davis v. Wilson, 11 Kan. reporter. (Penal Code Cal., § 1093.) 74. People v. Leary, 105 Cal. 486, 39 Louisiana. State v. Chevallier, 36 Pac. 24. See also, §§42, 43, ante. La. Ann. 85. 24— See §§ 45-50, ante. Ohio. Blackburn v. State, 23 Ohio 25 — See National Lumber Co. v. St. 146. Snell, 47 Ark. 407. 21 — Jaqua v. Cordesman & Egan 26 — Hauss v. Niblack, 80 Ind. 407. Co., 106 Ind. 141. See also, Mutual 27 — Ray v. Wooters, 19 111. 82. Ben. Life Ins. Co. v. Miller, 39 Ind. 28 — O'Donnell v. Segar, 25 Mich. 475. Compare, Toledo & W. Ry. Co. 369. See also, Continental Nat. Bank v. Daniels, 21 Ind. 256; Newton v. of New York v. Folsom, 67 Ga. 624, Newton, 12 Ind. 527. and Fry v. Shehee, 55 Ga. 208. 22 — In civil cases, violation of Oral utterances in precise accord statute is not error, such statute with what is written are not grounds being directory. Parker v. Chancel- for a venire de novo. If, however, lor, 78 Tex. 524; Galveston, H. & S. it is suggested that they are not in A. R. Co. v. Dunlavy, 56 Tex. 256; accordance with the written charge, Eeid v. Beid, 11 Tex. 585. they should be reduced to writing. 23— Giving of oral instructions in Currie v. Clark, 90 N. C. 355. 56] Necessity of Instructing in Writing. 107 The error in giving an oral modification is not cured by a direction from the court to the jury to consider the oral explanations and illustrations withdrawn, 29 nor by subse- quently, after the jury have retired, reducing such verbal explanations in writing; 30 but the error is cured by recall- ing the jury, adding the remark in writing to the charge, and then reading it to the jury. 31 § 56. Waiver or loss of right to written instructions. The statutory right to have the jury instructed in writ- ing may be waived by the parties concerned, even in crimi- nal cases. 32 Such waiver may result when the parties con- sent to an oral charge, 33 when the parties fail to make a timely request for written instructions in cases where writ- 29— Laselle v. Wells, 17 Ind. 33. 30— Payne v. Com., 1 Mete. (Ky.) 378. See also, § 54, ante, ' ' Subse- quent reduction of oral charge to writing. ' ' 31 — Powers v. Hazelton & L. Ry. Co., 33 Ohio St. 429. 32 — Arizona. Territory v. Ken- nedy, 1 Ariz. 505, 25 Pac. 517; Ter- ritory v. Gertrude, 1 Ariz. 74, 25 Pac. 473; Territory v. Duffield, 1 Ariz. 58, 25 Pac. 476. Illinois. Bates v. Ball, 72 111. 108. Indiana. Voght v. State, 145 Ind. 12. Tennessee. State v. Bungardner, 7 Baxt. 163. Wisconsin. Penberthy v. Lee, 51 Wis. 261. Contra, State v. Cooper, 45 Mo. 66; Smith v. Bowers, 82 Wash. 80, 143 Pac. 316. The statutory requirement that instructions shall be written may be waived in felony cases. State v. Andrews, 71 Wash. 181, 127 Pac. 1102. 33 — Colorado. Edwards v. Smith, 16 Colo. 529, 27 Pac. 809; Keith v. Wells, 14 Colo. 321, 23 Pac. 991; Rice v. Goodridge, 9 Colo. 237, 11 Pac. 91. Georgia. Continental Nat. Bank of New York v. Folsom, 67 Ga. 624. Illinois. Bates v. Ball, 72 111. 112; Litzelman v. Howell, 20 Bradw.'588; Best v. Wilson, 48 111. App. 352. Indiana. Voght v. State, 145 Ind. 12; Mutual Ben. Life Ins. Co. v. Miller, 39 Ind. 475. Iowa. State v. Sipult, 17 Iowa 575. Louisiana. State v. Chevallier, 36 La. Ann. 85. Massachusetts. Com. v. Barry, 11 Allen 263. Mississippi. Keithler v. State, 10 Smedes & M. 192. Nebraska. Fitzgerald v. Fitzger- ald, 16 Neb. 413; Kuhn v. Nelson, 61 Neb. 224. Tennessee. State v. Bungardner, 7 Baxt. 163. Texas. Clark v. State, 31 Tex. 574; Goode v. State, 2 Tex. App. 108 Instructions to Juries. [§56 ten instructions are not required unless requested, 34 or when a party does not object and save an exception to the oral charge. 3 * The withdrawal of a request also operates as a waiver. 30 As to waiver by consent, it may be said that the 520; Chamberlain v. State, 2 Tex. App. 451; Killman v. State, 2 Tex. App. 222. Parties who consent to oral in- structions cannot assign error" for the failure to give a charge not requested. Northwestern Elevator & Grain Co. v. Smiley, 154 111. App. 351. Giving of oral instructions in criminal ease is not reversible error if defendant consents or waives his right to written instructions. People v. Hersey, 53 Cal. 574; People v. Kearney, 43 Cal. 383. 34 — Georgia. .Tones v. State, 65 Ga. 507. ? Indiana. Sutherland v. Hankins, 56 Ind. 343. Kentucky. Risk v. Ewing (Ky.), 60 S. W. 923; Ferguson >. Fox's Adm 'r, 1 Mete. 86. Ohio. Village of Monroeville v. Root, 54 Ohio St. 523. Tennessee. Hardwick v. State, 6 Lea 230. 35 — The failure to object and save an exception to the giving of an oral instruction waives the error. Alabama. Louisville & N. R. Co. v. Hall, 91 Ala. 112, 24 Am. St. Rep. 863. Colorado. Jacobs v. Mitchell, 2 Colo. App. 456, 31 Pac. 235. Dakota. Stamm v. Coates, 4 Dak. 69. Indiana. Sutherland v. Venard, 34 Ind. 390; Tonbrook v. Brown, 17 Ind. 410; Heaston v. Cincinnati & F. W. R. Co., 16 Tnd. 275, 79 Am. Dec. 430n. Iowa. State v. Sipult, 17 Iowa 575; Head v. Langworthy, 15 Iowa 235. Kansas. Bird & M. Map Co. v. Jones, 27 Kan. 177; State v. Potter, 15 Kan. 303; Prater v. Snead, 12 Kan. 447. Michigan. Garton v. Union City Nat. 'Bank, 34 Mich. 279; Josselyn v. McAllister, 22 Mich. 300. Missouri. State \ . DeMosse, 98 Mo. 340. North Dakota. Power v. Larabee, 2 N. D. 141. Ohio. Village Of Monroeville v. Root, 54 Ohio St. 523. South Dakota. Frye v. Ferguson, 6 S. D. 392. Texas. Vanwey v. State, 41 Tex. 639; Carr v. State, 41 Tex. 543. Wisconsin. Stringham v. Cook, 75 Wis. 590. When oral instructions are giyen to a jury and the defendant does not object and save an exception, he waives his right to have such in- structions reduced to writing. Rea v. State, 3 Okla. Cr. App. 281, 106 Pac. 982, 105 Pac. 386. Error in orally modifying a writ- ten instruction is waived by failure to save an exception. Louisville & N. R. Co.'v. Hall, 91 Ala. 112, 124 Am. St. Rep. 863. 36 — Continental Nat. Bank of New York v. Folsom, 67 Ga. 624; State v. Hopkins, 33 La. Ann. 34. Where one party requests written •instructions, but afterwards with- draws the request, the other party cannot complain of oral instructions 56] Necessity of Instructing in Whiting. 109 consent of a defendant to the giving of oral instructions cannot be presumed from his presence and failure to object when such oral instruction is given. 37 When a timely re- quest is required, such request should be made at or before the close of the evidence, 38 and before the argument is begun, 39 and it is too late to make a request after the court has begun to instruct the jury orally. 40 A rule of court requiring a request for written instructions to be made at or before the commencement of the trial is unreasonable 41 and void, as being repugnant to the statute. 42 Objections to the giving of an oral charge must be made at the time the charge is given, 43 and such objections come too late when made after the retirement of the jury, 44 after verdict, 4 - 5 or for the first time upon motion for a new trial. 46 merely because he did not hear the withdrawal. Hencke v. Babcock, 24 Wash. 556, 64 Pae. 755. 37 — People v. Prospero, 44 Cal. 186; People v. Chares, 26 Cal. 78. 38 — Manning v. Gasharie, 27 Ind. 399; MeJunkins v. State, 10 Ind. 143; Jenkins v. Levis, 23 Kan. 255; Atchison, T. & S. F. R. Co. v. Frank- lin, 23 Kan. 74. But see Connor v., Wilkie, 1 Kan. App. 492, 41 Pac. 71. 39— Indiana. Welsh v. State, 126 Ind. 71, 9 L. R. A. 664; Powers v. State, 87 Ind. 144; McCalment v. State, 77 Ind. 250; Chance v. Indian- apolis & W. Gravel Road Co.. 32 Ind. 472. Kansas. Atchison, T. & S. F. R. Co. v. Franklin, 23 Kan. 74. Ohio. Village of Monroeville v. Root, 54 Ohio St. 523; Blackburn v. State, 23 Ohio St. 146. The record must show affirmatively that the request was made before the commencement of the! argument in the cause. Welsh v. State, 126 Ind. 71, 9 L. E. A. 664. A request made during the clos- ing argument may be disregarded. Atchison, T. & S. F. R. Co. v. Frank- lin, 23 Kan. 74. 40— Boggs v. Clifton, 17 Ind. 217; Cortner v. Amick, 13 Ind. 463; New- ton v. Newton, 12 Ind. 527. , 41 — Connor v. Wilkie, 1 Kan. App. 492, 41 Pac. 71. 42— Laselle v. Wells, 17 Ind. 33. 43 — State v. Barrow, 31 La. Ann. 691; State v. Outs, 30 La. Ann. 1155; State v. DeMosse, 98 Mo. 340; Van- wey v. State, 41 Tex. 639. Where no request for written in- structions was made, an objection taken after the giving of oral in- structions will not be considered. Davis v. Wilson, 11 Kan. 74. 44 — Gibson v. State, 26 Fla. 109; Garton v. Union City Nat. Bank, 34 Mich. 279. Error in the giving of an oral charge may be waived by failure to object before the retirement of the jury. Gibson v. State, 26 Fla. 109. 45 — Josselyn v. McAllister, 22 Mich. 306. 46 — Vanwey v. State, 41 Tex. 639; Goode v. State, 2 Tex. App. 520; Franklin v. State, 2 Tex. App. S. 110 Instructions to Jukies. [§56 The objection, however, must be repeated in the motion for a new trial, or it will be considered as waived. 47 In a few states it is held that under a statute requiring instructions to be in writing, unless written instructions are waived by consent of parties, the failure to object and save an excep- tion does not operate as a waiver, and the judgment will be reversed unless the record affirmatively shows consent to the oral instructions; 4S but in other states, under similar statutes, the ordinary rule is applied, and, in the absence of objection, the giving of oral instructions is not reversible error. 49 It seems that if waiver is induced by any action upon the part of the court or the prosecution, as where the defendant does not dare to insist upon his right to written instructions for fear of prejudicing the jury against him, he will not be bound thereby. 50 47— Horbach v. Miller, 4 Neb. 43, citing Midland Pae. E. Co. v. Mc- Cartney, 1 Neb. 404; Wells, Fargo & Co. v. Preston, 3 Neb. 446; Mills v. Miller, 2 Neb. 317. • 48 — Arizona. Territory v. Ger- trude/ 1 Ariz. 74; Territory v. Duf- fiel 187 111. App. 28. erroneous, that being a .question for Where there is no dispute about the jury. Illinois Cent. E. Co. v. the facts concerning the care and Hicks, 122 HI. App. 349; Landon v. caution of a woman in entering a Chicago & G. T. E. Co., 92 111. App. dark entraMe ° f a building, and the „ 1fi case rests solely on her statements ' . „ , and the surrounding circumstances, It is error for the court to group ... . . ,? , . „ ... ,, . ., which are not m dispute as to her certain facts and instruct that they exercise of ^ tu question rf cart. The question, then, is 88 — Carlisle v. State (Tex. Cr. not so much what the document App.), 56 S. W. 365. means, but what inference shall be 89 — Maine. State v. Patterson, drawn from it's meaning, and what 68 Me. 475. effect it shall have towards proving Maryland. Keefer v. Mattingly, the point at issue. The writing and 1 Gill. 182. all the concomitant evidence go to Missouri. Wilson v. Board Edu- the jury together. * * * It [the cation of Lee's Summit, 63 Mo. 142; court] may pronounce what mean- Primm v. Haren, 27 Mo. 205; Mantz ing the writing is or is not eapable v. Maguire, 52 Mo. App. 146. of, and whether it is not relevant to § 66] Province of Coubt and Jury. 131 evidence as a foundation of inferences of fact, whether inferences can be drawn is for the jury. The most authen- tic documents, when offered for such a purpose, become no more than letters or a written correspondence which, when offered to prove a fact, are to be interpreted by a jury. 90 There is also a large class of writings where the meaning of particular words, phrases, characters or 'abbreviations must be shown by evidence outside of the writing, and there may be extrinsic circumstances of one kind or another af- fecting the interpretation which may be shown by oral testimony. Thus, the terms of a writing may be expressed by words of science- or art, which require the evidence of experts to explain, or the words or terms used may be am- biguous or uncertain and not to be understood except by reference to and in connection with the surrounding cir- cumstances. And in such cases it has been held that very much must be left to the jury, 91 that "an admixture of parol with written evidence draws the whole to the jury, ' ' 92 and that even the construction of the writing is a question of fact for the jury. 93 But the better rule, and the one in accordance with the great weight of authority, is that when parol evidence is necessary to determine the words or terms in a written instrument, such evidence must be addressed to the jury whose duty it is to determine the meaning of the doubtful words or terms; but the court determines the meaning and effect of the instrument, with such light as the verdict may the issue; still the value and effect Iron & Steel Co., 99 Md. 382; Foster of such evidence is a question of v. Berg, 104 Pa. 328; Watson v. fact for the jury." State v. Pat- Blaine, 12 Serg. & E. 131, 14 Am. terson, 68 Me. 475. Dec. 669; Sidwell v. Evans, 1 Pen. & 90— Primm v. Haren, 27 Mo. 205. W. 383, 21 Am. Dec. 387. 91 — Sewall v. Henry, 9 Ala. 31; 93 — Jennings v. Sherwood, 8 Conn. First Nat. Bank of Springfield v. 122; Ginsburg v. Cutler & S. Lumber Dana, 79 N. Y. 116; Gardner v. Co., 85 Mich. 439; Harper v. Kean, Clark, 17 Barb. 551. 11 Serg. & B. (Pa.) 278. 92 — Joseph Bros. Co. v. Schonthal 132 Instructions to Jubies. [§66 afford on the question submitted to the jury. 94 The court has no right to take from the jury the determination of the meaning of the doubtful words or terms ; 95 but it will be equally erroneous to submit to the jury the construction of the entire contract. 86 The court may pursue two courses, 94 — Arkansas. Paepke-Leicht Lum- ber Co, v. Talley, 106 Ark. 400. Illinois. Salt Fork Coal Co. v. Eldridge Coal Co., 170 111. App. 268. Indiana. H. G. Olds Wagon Works v. Coombs, 124 Ind. 65. Maine. State v. Patterson, 68 Me. 473. Maryland. Osceola Tribe No. 11 v. Rost, 15 Md. 296. Massachusetts. Cunningham v. Washburn, 119 Mass. 227. Michigan. Curtis v. JVEartz, 14 Mich. 505. Missouri. Thetford v. General A. A. Corp., 140 Mo. App. 254; Phili- bert v. Burch, 4 Mo. App. 470. Nebraska. Meyer v. Shamp, 51 Neb. 424. New York. Gardner v. Clark, 17 Barb. 538. North Carolina. Silverthorn v. Fowle, 49 N. C. 362; Festerman v. Parker, 32 N. C. 474. Pennsylvania. Evans v t Negley, 13 Serg. & B. 220. South Carolina. Mowry v. Stog- ner, 3 Bich. 251. Tennessee. Kendrick v. Cisco, 13 Lea 248. Texas. Long v. McCauley, 3 S. W. 689. Wisconsin. Helmholz v. Evering- ham, 24 Wis. 266; Ganson v. Madi- gan, 15 Wis. 158. United States. West v. Smith, 101 U. S. 263, 25 L. Ed. 809; Goddard v. Foster, 17. Wall. 123, 21 L. Ed. 589; Etting v. Bank of United States, 11 Wheat. 59, 6 L. Ed. 419. Where oral evidence is admissible to explain the meaning of the terms or words used, the question may be submitted to the jury to determine in what sense they were used. Paepcke-Leicht Lumber Co. v. Tal- ley, 106 Ark. 400. 95 — Philibert v. Burch, 4 Mo. App. 470. In this case it was held that "where a written instrument is so ambiguous in its terms that it may be considered either a guaranty or a direct undertaking according to the circumstances under which it was given, and the testimony as to these circumstances is conflicting, it is error to give instructions based upon the assumption that the con- tract was a direct undertaking; but the question of direct undertaking or guaranty should be directly sub- mitted to the jury, on proper in- structions. ' ' It is the province of the court to cpnstrue a contract unambiguous in its terms. Veitch v. Jenkins, 107 Va. 68. 96 — Mowry v. Stogner, 3 Rich. (S. C.) 251. In this case, which was a, proceeding "to recover possession of land, the plaintiffs gave in evi- dence, as a munimfent of their title, a deed of doubtful construction, and defendants were allowed to give parol evidence of the acts and dec- larations of the parties to the deed, for the purpose of explaining the construction. The plaintiffs re- quested the presiding judge to charge upon the construction of the §67] Pkovincb of Couet and Juby. 13S either of which is proper. As was said in one case: "The court may first inform the jury as to the law, or the jury may first inform the court as to the facts, as may be most practicable." 97 In other words, "the facts may be found by a special verdict, and then the court interpret the writ- ing in view of such finding." 98 "Or the case may go to the jury with hypothetical instructions from the court to render a verdict one, way if certain facts are found, and another way if the facts are found differently." 99 Where the contract is not wholly in writing, but rests partly in parol, and the parol evidence is conflicting, it is for the jury to determine what the contract really was. 1 Whether or not a written contract has been altered by parol is a ques- tion for the jury. 2 So where the meaning of words is affected by a custom or usage of trade, it is for the jury to say in what sense they were used by the parties. 3 § 67. Oral contracts and language. When the existence and terms of a contract rest upon verbal communications it is necessarily a question of fact Curtis v. Martz, 14 deed, which was refused, and he left the question of construction wholly to the jury, as depending upon the parol evidence. Held, that in this there was error, and new trial granted. ' ' 97 — State v. Patterson, 68 Me. 474. 98 — State v. Patterson, 68 Me. 474; Fruin v. Crystal By. Co., 89 Mo. 397; Hutchison v. Bowker, 5 Mees. & W. 535, 540. 99 — Alabama. Humes v. Bern- stein, 72 Ala. 546. Indiana. Zenor v. Johnson, 107 Ind. 69. Maine. State v. Patterson, 68 Me. 473. Massachusetts. Cunningham v. Washburn, 119 Mass. 227; Eaton v. Smith, 20 Pick. 150. Edwards v. Smith, 63 Coquillard v. Hovey, Michigan. Mich. 506. Missouri. Mo. 119. Nebraska. 23 Neb. 622. North Carolina. Silverthorn v. Powle, 49 N. C. 362; Pesterman v. Parker, 32 N. C. 474. Texas. Long v. McCauley, 3 S. W. 692; Taylor v. McNutt,58 Tex. 71. Wisconsin. Helmholz v. Evering- ham, 24 Wis. 266. United States. West v. Smith, 101 U. S. 263, 25 L. Ed. 809. English. Neilson v. Harford, 8 Mees. & W. 822. 1 — Edwards v. Goldsmith, 16 Pa. 48; Bolckow v. Seymour, 17 C. B. (N. S.) 107. 2 — Boyce v. Martin, 46 Mich. 239. 3— Eaton v. Smith, 20 Pick. 134 Instructions to Juries. [§67 for the jury, 4 and it is erroneous to take away this question from them, 5 although the error is harmless and not ground for reversal, if the jury would have found the same facts as the court found. 6 The function of the jury in this class of cases is not merely to determine the words and expressions used by the parties, but to find the understanding and inten- tion of the parties. ' ' The question * * * is single, and cannot be separated so as to refer one part to. the jury arid another part to the judge; but in its entirety the question is one of fact. ' ' 7 But the court is to construe oral as well as written contracts after a jury have determined that an oral contract existed, and What were the terms orally agreed upon, 8 and it is error to permit the jury to determine the (Mass.) 150; Hutchison v. Bowker, 5 Mees. & W. 535. 4 — Illinois. Chichester v. White- leather, 51 111. 259. Iowa. Walthelm v. Artz, 70 Iowa 609; Carl v. Knott, 16 Iowa 379. Maine. Houghton v. Houghton, 37 Me. 72. Michigan. Hughes v. Tanner, 96 Mich. 113; McKenzie v. Sykes, 47 Mich. 294. Missouri. Smith v. Hutchinson, 83 Mo. 683; Judge v. Leclaire, 31 Mo. 127; Workingmen 's Banking Co. v. Blell, 57 Mo. App. 413. Montana. De Sandro v. Missoula Light & Water Co., 48 Mont. 226, 136 Pae. 711. New Hampshire. Folsom v. Plumer, 43 N. H. 469. New Jersey. Smalley v. Hendrick- son, 29 N. J. L. 373. New York. De Bidder v. Mc- Knight, 13 Johns. 294. North Carolina. Festerman v. Parker, 32 N. C. 474; Massey v. Belisle, 24 N. C. 170; Young v. Jef- freys, 20 N. C. 220. Pennsylvania. Codding v. Wood, 112 Pa. 371; Tobin v. Gregg, 34 Pa. 446. Tennessee. McGregor v. Penn, 9 Yerg. 74. 5 — Tobin v. Gregg, 34 Pa. 446. 6 — Beebe v. Koshnic, 55 Mich. 604. 7 — McKenzie v. Sykes, 47 Mich. 294. See also, Herbert v. Ford, 33 Me. 90 ; Copeland v. Hall, 29 Me. 93 ; Murphy v. Bedford, 18 Mo. App. 279; Fuller v. Bradley, 25 Pa. 120. 8 — Massachusetts. Short v. Wood- ward, 13 Gray 86; Wilmarth v. Knight, 7 Gray 294. Michigan. Barton v. Gray, 57 Mich. 623. Missouri. Belt v. Goode, 31 Mo. 128; Judge v. Leclaire, 31 Mo. 127. New Jersey. Smalley v. Hendrick- son, 29 N. J. L. 372. New York. De Bidder v. Mc- Knight, 13 Johns. 294. North Carolina. Bhodes v. Ches- son, 44 N. C. 336. Pennsylvania. Codding v. Wood, 112 Pa. 371. Wisconsin. Diefenback v. Stark, 56 Wis. 462, 43 Am. Rep. 719. § 68] Province of Cotjet and Jury. 135 effect of the agreement. 9 The instructions as to the legal effect of an oral contract should be hypothetical in form, based upon assumed facts, the existence of which the jury- are to pass upon. 10 The construction of oral words depends largely upon the circumstances under which they were uttered, and hence it may be error to take the question from the jury. 11 § 68. Statutes, ordinances and rules. The determination of the existence and proper construc- tion of statutes are questions of law, 12 and an instruction which permits the jury to, construe the provisions of a statute is erroneous. 13 Thus, it is erroneous to give an instruction permitting a jury to determine whether a mas- ter has violated a statute as to guarding machinery, without stating the obligations imposed on the employer by the statute, 14 or to leave to a jury the question of whether or not the common law or the Employers' Liability Act should apply to an issue. 15 Also, the question as to whether or not The effect of a parol agreement jury. People v. Van Dusen, 165 N. when its terms are given and their Y. 33. meaning fixed is as much a question 12 — Carpenter v. People, 8 Barb, of law as the construction of a writ- (N. Y.) 610; Gallatin Turnpike Co. ten instrument. Young v. Jeffreys, v. State, 16 Lea (Tenn.) 36; Post v. 20 N. C. 220. Supervisors, 105 TJ. S. 667, 26 L. Ed. .9 — Diefenback v. Stark, 56 Wis. 1204; Town of South Ottawa v. 462, 43 Am. Rep. 719. Perkins, 94 U. S. 260, 24 L. Ed. 154. 10— Barton v. Gray, 57 Mieh. 623. 13— St, Louis, I. M. & S. R. Co. v. 11 — An instruction that the words, State, 102 Ark. 205; Belt v. Marriott, "Take this away, and put it where 9 Gill (Md.) 334; Carpenter v. Peo- nobody will see it," even though pie, 8. Barb. (N. Y.) 603; Goode v. defendant suspected that the pack- State, 16 Tex. App. 411. age contained offensive articles, 14 — McDaniel v. Lebanon Lumber would not justify him in disposing Co., 71 Ore. 15, 140 Pac. 990. of it, because his instructions were 15 — Oberlin v. Oregon-Washington not to throw it away, was held er- R. & Nav.'Cp., 71 Ore. 177, 142 Pac. roneous because the construction to 554. be placed on the words depended In an action for personal injuries, upon other conversations at the time, where the case was within the Em- and the nature and contents of the ployers' Liability Act (L. Ore. 1911, package, and was a question for the p. 16), it was the duty of the court 136 Instbuctions to Jtjeies. [§68 a written instrument complies with a statute which requires it is a question of law for the court, because its decision depends entirely on the construction of the statute and of the written instrument. 16 What constitutes doing business in the state, in an action against a foreign corporation, has been held a mixed ques- tion of law and fact, 17 but the determination of the existence and terms of a treaty is a question of law. 18 As to foreign laws, the weight of authority is to the effect that evidence to prove the existence of a foreign law is to be addressed to the jury, and that they, and not the court, are to pass on the question of its existence, 19 although there are some decisions in which it is held or said that evidence to show the existence of foreign laws is to be addressed to the court. 20 Where the existence of a foreign law has been to instruct the jury as to the appli- cation of such act, and not leave the jury to say what questions were un- der the common law. Hoag v. Wash- ington-Oregon Corporation, — Ore. — , 144 Pac. 574. 16 — Missouri, K. & T. B. Co. v. United States, 101 C. C. A. 143,' 178 Fed. 15. 17— Chicago, B. I. & P. Ey. Co. v. Neil P. Anderson & Co., — Tex. Civ. App. — , 130 S. W. 182. 18 — Harris v. Doe, 4 Blackf. (Ind.) 369; Eoberts v. Lucas, 1 Wash. T. 205. < 19— California. People v. Tufts, 167 Cal. 266, 139 Pac. 78. Connecticut. Lockwood v. Craw- ford, 18 Conn. 361. Maryland. Cecil Bank v. Barry, 20 Md. 287, 83 Am. Dec. 553. Massachusetts. Ely v. James, 123 Mass. 44; Knapp v. Abell, 10 Allen 485. Missouri. Wear v. Sanger, 91 Mo. 348; Charlotte v. Chouteau, 33 Mo. 194. North Carolina. Hooper v. Moore, 50 N. C. 130; Mbore v. Gwynn, 27 N. C. 190; State v. Jackson, 13 N. C. 563. Ohio. Alexander v. Pennsylvania Co., 48 Ohio St. 634; Eaymond v. Eoss, 40 Ohio St. 343; Niagara County Bank v. Baker, 15 Ohio St. 68; Ingraham v. Hart, 11 Ohio 255. South Carolina. State v. Whittle, 59 S. C. 297. No court takes judicial notice of the laws of another state' or of a foreign country, in the absence of statute providing that this shall be done, and their existence must be proved as a fact. People v. Tufts, 167 Cal. 266, 139 Pac. 78; Brackett v. Norton, 4 Conn. 517, 10 Am. Dec. 179; Hooper v. Moore, 50 N. C. 130; State v. Whittle, 59 S. C. 297. 20 — Maryland. Wilson v. Carson, 12 Md. 75. New Hampshire. Hall v. Costello, 48 N. H. 179; Pickard v. Bailey, 26 N. H. 152. New York. Monroe v. Douglass, §68] Pbovince of Coubt and Jury. 137 established, it is the duty of the court to interpret it, and instruct the jury as to its meaning and application, 21 espe- cially where the evidence is conflicting as to the require- ments of such law. 22 The sister states of the Union are foreign to each other, within the meaning of the rule under consideration. 2 3 The question as to whether a city ordinance is in force is for the court, 24 and such ordinance is to be proved by evi- dence addressed to the court, and not to the jury. 23 The construction of municipal ordinances is also a question for 1 Seld. 447; Dollfus v. Frosch, 1 Denio 367; Lincoln v. Battelle, 6 Wend. 475. , See also, Trasher v. Everhart, 3 GUI & J. (Md.) 234, where it was said: "It is, in general, true that foreign laws are facts which are to be found by the jury; but this general rule is not applicable to a case in which the foreign laws are introduced for the purpose of en : abling the court to determine whether a written instrument is evi- dence. In such case, the evidence always goes, in the fijst instance, to the court, which, if the evidence be clear and uncontradicted, may and ought to decide what the foreign law is, and, according to its deter- mination on that subject, admit or reject the instrument of writing as evidence to the jury. It is offered to the court to determine a ques- tion of law, — the admissibility or in- admissibility of certain evidence to the jury. ' ' 21 — Alabama. Ingev. Murphy, 10 Ala. 897. Maryland. Cecil Bank v. Barry, 20 Md. 287 ? 83 Am. Dec. 553. Missouri. Cobb v. Griffith & Ad- ams Sand, Gravel & Transportation Co., 87 Mo. 90; Charlotte v. Chou- teau, 33 Mo. 194. North Carolina. Moore v. Gwynn, 27 N. C. 191. Compare Holman v. King, 7 Mete. (Mass.) ,384. Though what is the law of another state is a fact to be proved as other facts, it is not a charge on the facts for the court to construe the lan- guage of documentary evidence, such as a statute of another state. State v. Whittle, 59 S. C. 297. 22 — Where the evidence is con- flicting as to the requirements of a fpreign law, it is the duty of the court to assist the jury in reaching a just conclusion by analyzing the testimony, and showing its possible application to the theories of the respective parties. People v. Tufts, 167 Cal. 266, 139 Pac. 78. 23 — See generally, the cases cited supra, this section. 24 — Brun v. Chicago City By. Co., 183 111. App. 129; Plummer v. Indi- anapolis Union By. Co., — 'Ind. App. — , 104 N. E. 601. 25 — Eoulo v. Valcour, 58 N. H. 347; Hall v. Costello,, 48 N. H. 176. See also, Chicago, E. I. & P. E. Co. v. Jones, 13 111. App. 634. 138 Instetjctions to Jtjeies. [§68 the court, 26 and it is error to submit to the jury, without construction by the court, an ordinance, the meaning of which is, as to the point in controversy, not perfectly clear. 27 It is also the province of the court to construe the rules and regulations of a city board of trade, 28 or the by-laws and resolutions of a corporation, 29 or the charters of cor- porations, 30 or the constitution and by-laws of an asso- ciation. 31 The sufficiency of compliance with rules in negligence cases as a question of fact has already been referred to. 32 § 69. Directing verdict — Civil cases. The power is vested in the court in proper cases to deter- mine whether the evidence offered tends to support the allegations of the party. 33 This right should be cautiously exercised, but in some cases it is the duty of the court to direct a verdict when requested; and a failure to do so will be error. 34 And this power operates as an important quali- fication of the rule that the determination of questions of 26 — Alabama. Barnes v. City of 634; Higgins v. McCrea, 116 U. S. Mobile, 19 Ala. 707. 671, 29 L. Ed. 764. Illinois. City of Peoria v. Cal- 29 — Jumper v. Commercial Bank houn, 29 111. 317; Pennsylvania Co. of Columbia, 48 S. C. 430. The rea- v. Frana, 13 111. App. 91. , sonableness and validity of a by-law Iowa. Piatt v. Chicago, B. & Q. or regulation of a corporation is -a Ey. Co., 74 Iowa 127. question of law for the court to Missouri. Barton v. City of determine, and it is error to submit Odessa, 109 Mo. App. 76. it to a jury. City of St. Louis v. Virginia. Washington Southern Weber, 44 Mo. 547; Neier v. Mis- Ey. Co. v. Lacey, 94 Va. 460. souri Pae. By. Co., 12 Mo. App. 26. A valid ordinance stands on the 30 — Selma, M. & M. E. Co. v. same footing as a statute. An in- Anderson, 51 Miss. 829. struction which leaves it to the jury 31 — Johnson v. Miller, 63 Iowa to determine the application of an 529, 50 Am. Eep. 758. ordinance to the circumstances, and 32— See § 63, ante. its legal effect, is erroneous. Penn- 33 — Tobler v. Pioneer Min. & Mfg, sylvania Co. v. Frana, 13 111. App. 91. Co., 166 Ala. 482. 27 — Sadler v. Peoples, 105 Fed. 34— Tobler v. Pioneer Min. & Mfg. 712. Co., 166 Ala. 482. 28 — Wright v, Fonda, 44 Mo. App. The duty in reference to directing 69] Pbovinoe op Coukt and Jury. 139 fact rests exclusively within the province of the jury. The right rests upon the principle that where, as a matter of law, the evidence is insufficient to support a verdict for one party, no question of fact is presented for the jury, and therefore the court may direct a verdict for the other party. 35 The test of the right is whether the court would be bound to set aside a verdict as against the evidence if rendered against the party in whose favor the verdict is directed. 36 It is proper to direct a verdict against the party' a verdict should be cautiously exer- cised. O'Connor v. Witberby, 111 Oal. 523, 44 Pac. 227; Gunn v. City of Jacksonville, — Fla. — , 64 So. 435. In some jurisdictions, the practice of directing a verdict is not looked upon with favor, and is very strictly limited. Illinois. Deshler v. Beers, 32 ' 111. 368, 83 Am. Dec'. 274. Tennessee. Ayres v. Moulton, 5 Cold. 154; Jones v. Cherokee Iron Co., 14 Lea 157; Robinson v. Louis- ville & N. R. Co., 2 Lea 596. / Texas. Reynolds v. Williams, 1 Tex. 311. Virginia. Keel v. Herbert, 1 Wash. 203. 35 — Fox v. Spring Lake Iron Co., 89 Mich. 387; Schuylkill & D. Im- provement Co. v. Munson, 14 Wall. (IT. S.) 442, 20 L. Ed. 867; Parks v. Ross, 11 How. (U. S.) 362, 13 L. Ed. 730. Where there is no conflict in the evidence, no dispute as to the facts, there is nothing to submit to the jury, and the court should direct the jury as to the particular verdict they should find in accordance with the undisputed evidence. Merrill v. Missouri Bridge & Iron Co., 69 Ore. 585, 140 Pac. 439. 36 — Alabama. Georgia Pac. Ry. Co. v. Propst, 90 Ala. l.~ Arkansas. Catlett v. St. Louis, I. M. & S.. Ry. Co., 57 Ark. 461, 38 Am. St. Rep. 254. California. In re Morey's Estate, 147 Cal. 495, 82 Pac. 57; Los An- geles Farming & Milling Co. v. Thompson, 117 Cal. 594, 49 Pac. 714; Downing v. Murray, 113 Cal. 455, 45 Pac. 869; Davis v. California St. Cable R. Co., 105 Cal. 131, 38 Pac. 647; Lacey v. Porter, 103 Cal. 597, 37 Pac. 635; Meyer v. Lovdal, 6 Cal. App. 369, 92 Pac. 322. Illinois. Libby, McNeill & Libby v. Cook, 222 111. 206, afi'g 123 111. App. 574; Bartelott v. International Bank, 119 HI. 259; Simmons v. Chi- cago & T. R. Co., 110 111. 340; Packer v. Sheppard, 127 111. App. 598. -Indiana. Oleson v. Lake Shore & M. S. Ry. Co., 143 Ind. 405, 32 L. R. A. 149. Iowa. Reeder v. Dupuy, 96 Iowa 729; Beekman v. Consolidation Coal Co., 90 Iowa 252. Massachusetts. Brooks v. Inhab- itants of Somerville, 106 Mass. 271. Michigan. Hathaway v. Judie, 95 Mich. 241. Minnesota. Giermann v. St. Paul, M. & M. Ry. Co., 42 Minn. 5. Missouri. Powell v. Missouri Pac. Ry. Co., 76 Mo. 80. 140 Instructions to Juries. [§69 having the burden of proof, where no evidence has been introduced to support his theory of the case, 37 or where the evidence raises no material question of fact for the jury's determination. 38 Thus, when the plaintiff has introduced his evidence, and it does not tend to prove his cause of action, the court may refuse to hear evidence of the defend- Nebraska. Iowa Hog & Cattle Powder Co. v. Ford, 87 Neb. 708. North Dakota. Bowman v. Ep- pinger, 1 N. D. 21. Oklahoma. Jones v. First State Bank of Bristow, 39 Okla. 784, 136 Pae. 737. Pennsylvania. Holland v. Kindre- gan, 155 Pa. 156. South Dakota. Peet v. Dakota Fire & Marine Ins. Co., 1 S. D. 462. West Virginia. Vance v. Virginia Poncahontas Coal Co., — W. Va. — , 82 S. E. 1081; Butcher v. Sommer- ville, 67 W. Va. 261. Wisconsin. Joeckel v. Joeckel, 56 Wis. 436. United States. Keyes v. Grant, 118 U. S. 25, 30 L. Ed. 54; Pleasants v. Fant, 22 Wall. 116, 22 L. Ed. 780. 37 — Alabama. Finney v. State, 10 Ala. App. 39. California. White v. Warren, 120 Cal. 322, 52 Pac. 723, 49 Pac. 129; Heilbron v. Heinlen, 72 Cal. 376, 14 Pac. 24; Corwin v. Patch, 4 Cal. 204. Florida. Gunn v. City of Jack- sonville, — Fla. — , 64 So. 435. Illinois. City of East St. Louis v. O'Flynn, 119 111. 200, 59 Am. Rep. 795; Pynchon v. Day, 118 111. 9. Indiana. Martin v. Martin, 118 Ind. 227. Iowa. Allen v. Wheeler, 54 Iowa 628; Murphy v. Chicago, R. I. & P. R. Co., 45 Iowa 661; Atkinson v. Blair, 38 Iowa 156. Kansas. Coon v. Atchison, T. & S. F. Ry. Co., 75 Kan. 282, 89 Pac. 682; MacRitchie v. Johnson, 49 Kan. 321, 30 Pac. 477. Massachusetts. Morley v. East- ern Exp. Co., 116 Mass. 97. Michigan. People v. Montague, 71 Mich. 318; Dondero v. Frumveller, 61 Mich. 440. Missouri. Corby v. Butler, 55 Mo. 398; Alexander v. Harrison,, 38 Mo. 258, 90 Am. Dec. 431. Nebraska. Slayton v. Fremont, E. & M. V. R. Co., 40 Neb. 840. North Carolina. Everett v. Wil- liams, 152 N. C. 117. Oklahoma. Homeland Realty Co. v. Robison, 39 Okla. 591, 136 Pac. 585. Texas. American Machinery Co. v. Haley, — Tex. Civ. App. — , 165 S. W. 83; Dayton Lumber Co. v. Stockdale, 54 Tex. Civ. App. 611. United States. McLeod v. Fourth Nat. Bank of St. Louis, 122 U. S. 528, 30 L. Ed. 1237; Howard v. Mil- waukee & St. P. Ry. Co., 101 U. S. 837, 25 L. Ed. 1081. A verdict should be directed for the plaintiff where the defendant's evidence considered most favorably to him, together with all legitimate inferences that may be drawn from it, utterly fails to present, a de- fense. Homeland Realty Co. v. Robi- son, 39 Okla. 591, 136 Pac. 585. 38 — Paxton v. State, — Ark. — , 170 S. W. 80. §69] Province of Court and Jtjby. 141 ant, and if properly requested direct the jury to find against the plaintiff, 39 but it is only in the absence of all evidence against the defendant that the court should direct a ver- dict in his favor. 40 And it is always error and not within the discretion of the court to leave a question to the jury in respect of which there is no evidence. 41 Likewise, when the facts in the case are undisputed and the evidence, with all the inferences which the jury can rightfully draw from it, does not as a matter of law have any tendency to estab- lish the proposition which is essential to the maintenance of the action, it is the duty of the judge, if properly re- quested, to so instruct the jury; 42 but if there is any evi- dence which tends to establish the plaintiff's cause, it is error for the court to withdraw the case from the jury or to direct a verdict, because it is not for the court to judge of the sufficiency of the evidence. 43 The line between the duties of the court and those of the 39 — Tobler v. Pioneer Min. & Mfg. Co., 166 Ala. 482. 40 — Tobler v. Pioneer Min. & Mfg. Co., 166 Ala. 482. , 41 — Tobler v. Pioneer Min. & Mfg. Co., 166 Ala. 482. If .there is none to support the theory of fact assumed, the court should not let the case go to the jury. Tobler v. Pioneer Min. & Mfg. Co., 166 Ala. 482. 42 — Tobler v. Pioneer Min. & Mfg. Co., 166 Ala. 482; Martin v. Ward, 69 Cal. 129, 10 Pac. 276. It is proper to direct a verdict for the plaintiff where there is no substantial conflict in the evidence as to facts determinative of the case, or where the facts are admitted. O'Connor v. Witherby, 111 Cal. 523, 44 Pac. 227. It is proper to direct a verdict where there is no evidence of some fact the existence of which is essen- tial to his case. California. Lacey v. Porter, 103 Cal. 597, 37 Pac. 635. Illinois. Huschle v. Morris, 131 111. 587; Continental Life Ins. Co. v. Rogers, 119 111. 474, 59 Am. Eep. 810n; Alexander v. Cunningham, 111 111. 511; Frazer v. Howe, 106 111. 563; Harrigan v. Chicago & I. R. Co., 53 III. App. 344. Indiana. Baker v. Bundy, 55 Ind. App. 272. Nebraska. Campbell v. Roe, 32 Neb. 34'5. New York. Neil v. Thorn, 88 N. Y. 270; Heyne v. Blair, 62 N. Y. 19. Pennsylvania. Baird v. Schuylkill River East Side R. Co., 154 Pa. 463. Vermont. Noyes v. Rockwood, 56 Vt. 647. 43 — Tobler v. Pioneer Min. & Mfg. Co., 166 Ala. 482. 142 Instructions to Juries. [§69 jury should be observed, 44 and questions should be submit- ted to the jury where the evidence is conflicting and the determination of the fact depends upon the weight of the evidence or the credibility of witnesses, 45 and where infer- ences of fact are to be drawn, unless the case is such that there is no room for reasonable men to draw different con- clusions. 46 If there is some legal evidence tending to sup- 44— ^Tobler v. Pioneer Min. & Mfg. Co., 166 Ala. 482. 45 — Arkansas. McDonnell v. St. Louis Southwestern R. Co., 98 Ark. 334. Colorado. Colorado Coal & Iron Co. v. John, 5 Colo. App. 213, 38 Pae. 399. Florida. Gunn v. City of Jack- sonville, — Fla. — , 64 So. 435. Illinois. Moore v. Aurora, E. & C. R. Co., 246 111. 56, aff'g 150 111. App. 484; Chicago, B. & Q. R. Co. v. Payne, 59 111. 534; Gallagher v. Kil- keary, 29. 111. App. 415. Indiana. Baker v. Bundy, 55 Ind. App. 272. Iowa. Orr v. Cedar Rapids & M. C. Ry. Co., 94 Iowa 423; Piatt v. Chicago, St. P., M. & O. Ry. Co., 84 Iowa 694, Michigan. Lau v. Fletcher, 104 Mich. 295; Wisner v. Davenport, 5 Mich. 501. - Nebraska. Hiatt v. Brooks, 17 Neb. 33. New York. Lever v. Poote, 82 Hun 393. Oklahoma. Gamble v. Riley, 39 Okla. 363, 135 Pac. 390. Wisconsin. Dirimple v. State Bank, 91 Wis. 601. United States. Moulor v. Ameri- can Life Ins. Co., 101 U. 8. 708, 25 L. Ed. 1077. Where the declaration states a good cause of action and the evi- dence though conflicting tends to support the declaration, it is not error to refuse to take the case from the jury. Moore v. Aurora, E. & C. R. Co., 246 111. 56, aff'g 150 111. App. 484. 46 — Alabama. Alabama Gold Life Ins. Co. v. Mobile Mut. Ins. Co., 81 Ala. 329. Iowa. Milne v. Walker, 59 Iowa 186. Michigan. Stevens v. Pendleton, 85 Mich. 137 ; Teipel v. Hilsendegren, 44 Mich. 461. Nebraska. Suiter v. Park Nat. Bank, 35 Neb. 372. New York. Heyne v. Blair, 62 N. Y. 19. South Dakota. Knight v. Towles, 6 S. D. 575. Texas. Wall v. Wilson, — Tex. Civ, App. — , 145 S. W. 655. The court may direct a verdict where the facts are so clear and convincing that there is no room for fair and reasonable minds to reach different conclusions. Mitch- ell v. Stanton, — Tex. Civ. App. — , 139 S. W. 1033; Sovereign Camp of Woodmen of "the World v. Jackson, — Tex. Civ. App. — , 138 S. W. 1137. When the evidence is such that reasonable minds may differ as to the conclusion to be drawn there- from, it would be error for the court to instruct a verdict. Gulf, C. & S. F. By. Co. v. Wafer, — Tex. Civ. App. — , 130 S. W. 712. §69] Province of Court and Jury. 143 port a material issue, or to sustain the plaintiff's case, it should be submitted to the jury, 47 and in many cases it is held that even a scintilla of evidence to support a finding of fact is sufficient to necessitate its submission to the jury; 48 but such doctrine is considerably modified, if not overruled by later cases, 49 and the better authority is to the effect that if the evidence is so insufficient to support a ver- dict for plaintiff that if returned it must be set aside, a verdict may be directed for defendant. The question of the existence of any legal evidence (not a scintilla merely) upon which a verdict for the party having the burden of proof might be based is a question of law. 50 It is proper to direct a verdict for the plaintiff where the answer sets up no legal 47 — If there is any evidence,, cir- cumstantial or otherwise, fairly tending to support a material issue, it is the duty of the court to sub- mit it to the jury. Bolt v. State Sav. Bank of Manchester, Iowa, — Tex. Civ. App. — , 145 S. W. 707. Where there is some legal evi- dence, though it be slight, to sus- tain the issues on the part of the plaintiff, the trial court must sub- mit the case to the jury. Beaver v. Mason, Ehrman & Co., — Ore. — , 143 Pae. 1000. 48 — Arkansas. Little Eock & Ft. S. Ey. Co. v. Henson, 39 Ark. 413. Kansas. Kelley v. Eyus, 48 Kan. 120, 29 Pac. 144. Kentucky. American Dist. Tel. Co. v. Oldham, 148 Ky. 320, 1913 E 392n. Missouri. Charles v. Patch, 87 Mo. 450; Workingmen's Banking Co. v. Blell, 57 Mo. App. 410. New York. Colt v. Sixth Ave. E. Co., 49 N. Y. 671. Pennsylvania. Fitzwater v. Stout, 16 Pa. 22. South Dakota. Haugen v. Chicago, M. & St. P. Ey. Co., 3 S. D. 394. Texas. Eeynolds v. Williams, 1 Tex. 311. United States. Hickman v. Jones, 9 Wall. 197, 19 L. Ed. 551; Schu- chardt v. Allen, 1 Wall. 359, 17 L. Ed. 642; Dwyer v. St. Louis & S. F. . E. Co., 52 Fed. 87. 49 — See the cases cited, supra, this section. Also to the effect that a mere scintilla of evidence does not force a submission to the jury, see Libby, McNeill & Libby v. Cook, 222 111. 206, aff'g 123 111. App." 574; Woodman v. Illinois Trust & Sav- ings Bank, 211 111. 578; Offutt v. World's Columbian Exposition, 175 111. 472, rev'g 73 111. App. 231; Werk v. Illinois Steel Co., 154 111. 427, aff'g 54 111. App. 302; Finley v. West Chicago St. Ey. Co., 90 111. App. 368; Kinnare v. Klein, 88 ill. App. 304. 50 — Arkansas. Catlett v. St. Louis, I. M- & S. Ey. Co., 57 Ark. 461, 38 Am. St. Eep. 254. Illinois. Bartelott v. International Bank, 119 111. 259. Mississippi. Illinois Cent. E. Co. v. Boehms, 70 Miss. 11. 144 Instructions to Jtjkies. [§69 or equitable defense, 51 and a material variance may amount to a failure of proof, in which case a verdict may be di- rected. 52 § 70. Same — Criminal cases. In a criminal case the weight of authority is to.the effect that it is never proper to direct a verdict of guilty, 53 although there are cases to the contrary; 54 and it has been held that a direction to find a defendant guilty should never be given except as the result of finding from the evidence New York. Bagley v. Bowe, 105 N. Y. 171, 59 Am. Rep. 488. Pennsylvania. Holland v. Kindre- gan, 155 Pa. 156. Wisconsin. Jones v. Chicago & N. W. Ry. Co., 49 Wis. 352. United States. Schuylkill & D. Improvement Co. v. Munson, 14 Wall. 442, 20 L. Ed. 867; Hathaway v. East Tennessee, V. & G. R. Co., 29 Fed. 489. But compare Denny v. Williams, 5 Allen (Mass.) 1; Carver v. De- troit & S. Plank Road Co., 61 Mich. 584; Spiro v. FeltOn, 73 Fed. 91. 51 — Craig Milling Co. v. Cromer, 85 S. C. 350. 52 — Ferguson v. Tucker, 2 Har. 6 G. (Md.) 182; Strahle v. First Nat. Bank of Stanton, 47 Neb. 319; Tracy v. Ames, 4 Lans. (N. Y.) 500. 53 — Alabama. Nonemaker v. State, 34 Ala. 211; Huffman v. State, 29 Ala. 40. Florida. McCray v. State, 45 Fla. 80. Georgia. Tucker v. State, 57 Ga. 503. Kansas. State v. Wilson, 62 Kan. 621, 52 L. R. A. 679, 64 Pac. 23. Michigan. People v. McCord, 76 Mich. 200. Missouri. State v. Picker, 64 Mo. App. 126. Montana. State v. Sloan, 35 Mont. 367, 89 Pac. 829; State v. Koch, 33 Mont. 490, 8 Ann. Cas. 804, 85 Pac. 272. North Carolina. Everett v. Wil- liams, 152 N. C. 117; State v. Hill, 141 N. C. 769; State v. Riley, 113 N. C. 648. South Carolina. State v. Sanders, 52 S. C. 580. Tennessee. Shipp v. State, 128 Tenn. 499. United States. United States v. Taylor, 11 Fed. 470. Rev. St. Florida 1892, § 1088, as to direction of verdict, applies only to civil cases. McCray v. State, 45 Fla. 80. In a prosecution for felony, where a plea of not guilty is interposed, it is not permissible for the court to direct a verdict of guilty or to pass on any question of fact unfavorable to the defendant, even though the evidence is uncontradicted or con- clusive. Shipp v. State, 128 Tenn. 499. 54 — See Wilson v. State, — Ark. — , 169 S. W. 795; Bobo v. State, 105 Ark. 462, where a verdict of guilty of unlawfully selling intoxi- cating liquor was directed. See also, People v. Neumann, 85 Mich. 98; People v. Ackerman, 80 Mich. 588. §71] Province of Couet and Jury. 145 beyond a reasonable doubt all the facts which are necessary to establish his guilt. 55 In most states it is proper to direct a verdict of not guilty where the evidence is insufficient to support a conviction, and it is error to refuse to do so. 56 Where there is some evidence of guilt, the court may, of course, decline to direct an acquittal, and may leave the question to the jury; B7 and whatever "the state 's evidence may be, the court is not bound to direct an acquittal until the conclusion of all the testimony. 58 § 71. Power of jury to judge the law in criminal cases. In criminal cases, some misunderstanding has existed as to the respective functions of the court and jury. This is due to a misconstruction of the early English decisions, erroneous dicta in our own decisions, and also to speculative arguments of eminent lawyers as well as the statements of v. Lemen, 231 111. 193, App. 295. State v. Smith, 28 Saylor v. Com., 158 55 — People rev'g 133 111 56 — Iowa. Iowa 565. Kentucky. Ky. 768. Ohio. Baker v. State, 31 Ohio St. 314. Texas. Gann v. State, 42 Tex. Cr. App. 133. Utah. State v. Karas, 43 Utah, 506, 136 Pac. 788. West Virginia. State v. Flanagan, 48 W. Va. 115. Contra, People v. Roberts, 114 Cal. 67, 45 Pac. 1016; People v. Daniels, 105 Cal. 262, 38 Pae. 720. "Under no circumstances is the court au- thorized in a criminal case to direct a jury to return any particular ver- dict. It can simply advise them to do so — an advice which they are not bound to follow." People v. Stoll, 143 Cal. 689, 77 Pac. 818. Blashfield Vol. I— 10 , "There can be no nonsuit in a criminal case. *" * * The proper practice is to ask the court to direct an acquittal." State v. Hyde, 22 Wash. 551, 61 Pac. 719. Where the information fails to state a crime, the proper practice is to discharge the jury from further consideration of the case, and not to direct a ver- dict of not guilty. State v. Denni- son, 60 Neb. 157. . 57 — Illinois. Gott v. People, 187 111. 249. Kentucky. Com. v. Foster, 22 Ky. L. Rep. 1711. North Carolina. State v. Costner, 127 N. C. 566, 80 Am. St. Rep. 809; State v. Utley, 126 N. C. 997. North Dakota. State v. Moeller, 20 N. D. 114. Washington. State v. Hyde, 22 Wash. 551, 61 Pac. 719. 58 — Com. v. George, 13 Pa. Super. Ct. 542. 146 Instructions to Juries. [§ 71 early English text writers. And accordingly the claim is not infrequently made, even at this late date, that the jury are the judges of the law in the sense that they may disre- gard the instructions and determine the cause according to their own notion of what the law is. There are decisions of the American courts which so hold, but these decisions have without exception been overruled, and the law definitely settled to the contrary. In several states, however, statutes and constitutional provisions exist whereby the jury are the judges of the law. 59 But in all other states it is no longer open to ques- tion that the jury are bound by their oath to adopt and fol- low the instructions given by the court as the law of the case. § 72. Rule in England deducible from decisions and text- books. The uniform holding of the English courts is that the jury are bound to adopt the instructions of the court as con- taining a true exposition of the law governing the case, and that they act in violation of their oath if they fail to do so. 60 59 — See § 74, post. Tr. 870; King v. Withers, 3 Term 60 — Eex v. Dean of St. Asaph, 3 R. 428; Stoekdale's Case, cited in Term B. 428, and note; Eex v. Nutt, dissenting opinion of Lewis, C. J., 1 Barnard. 306; Eex v. Oneby, 2 Ld. in People v. Croswell, 3 Johns. Cas. Eaym. 1493, 2 Strange, 766; Tut- (N. Y.) 408. chin's Case, 14 How. State Tr. 1095; On the trial of Colonel Lilburn Eex v. Wilkes, 4 Burrows, 2527; Eex for treason in 1649, the court re- v. Woodfall, 5 Burrows, 2661 Owen's Case, 18 How. State Tr 1203; Eex v. Poole, Hardw. 23 Puller's Case, 14 How. State Tr. 517 Bushell's Case, Vau'ghan, 135 Hood's Case, J. Kelyng, 50; Lil burne's Case, 4 Cobbett, State Tr, fused to permit him to read to the jury from a law book. Being angry at this, he exclaimed: "You that call yourselves judges of the law are no more but Norman intruders, and, in deed and in truth, if the jury please, are no more but cyphers, 1269; Wharton's Case, Yel. 24; Eex to pronounce their verdict." There- v. Clerk, 1 Barnard. 304; Sidney's upon Jermin, J., said: "Was there Case, 9 Cobbett, State Tr. 818; ever such a damnable blasphemous Throckmorton's Case, 1 State Tr. heresy as this, to call the judges of 901; Miller's Case, 20 How. State the law cyphers?" He then charged § 72] Province of Court and Jury. 147 Some of the English decisions, especially in cases of criminal libel, have been cited in support of the theory that the jury are the judges of the law in the sense that they may disregard the instructions, but it is believed that there is not a single English decision in which it is so held, though there may be dicta in a few decisions which would seem to support the theory. On the contrary, there are at least two authentic instances where the acquittal of a defendant in disregard of the instructions resulted in the imprisonment and fine of the jury. 61 The statements of early text writers and commentators have frequently been cited as showing that the jury might disregard the instructions of the court and determine the law as well as the facts, but an examination of such authori- ties will show that the jury not only did not possess such right, but were subject to punishment for disobeying the instructions. A very explicit statement to the effect that the jury were not bound by the instructions is found in the work on the English constitution by De Lolme, 62 but the author cites the jury that they were not judges est consequence to the law of Eng- of the law, and that they " ought " land and to the subject that these to take notice of it, that the judges powers of the judge and jury are that are sworn, that are twelve in kept distinct; that the judge deter- number, they have ever been the mine the law, and the jury the fact; judges of the law from the first time and, if ever they come to be con- that ever we can read or hear that founded, it will prove the confusion the law was truly expressed in Eng- and destruction of the law of Eng- land; and the jury are only judges land." * * * of matters of fact." Lil- 61— See Wharton's Case, Yel. 24; burne's Case, 4 Cobbett, State Tr. Throckmorton's Case, 1 St#te Tr. 1379. 901. In Bex v. Poole, Hardw. 28, Lord 62 — "As the main object of the Hardwicke denied the right of the institution of the trial by jury is jury to disregard the instructions, to guard the accused persons against and said: "The thing that governs all decisions whatsoever by men in- greatly in this determination is that vested with any permanent official the point of law is not to be deter- authority, it is not only a settled mined by juries. Juries have a principle that the opinion which the power by law to determine matters judge delivers has no weight but of fact only; and it is of the great- such as the jury choose to give it, 148 Instructions to Jueies. [§72 no authority in support of his position, and his statement is not entitled to much weight. 63 It has also been frequently contended that the right of the jury to decide the law upon the general issue was vested in them by the English constitution, because of the words of the statute of Westminster II, ch. 30 (13 Edw. I [A. D. 1285]), which provided "that the justices assigned to take assizes shall not compel the jurors to say precisely whether it be disseisin or not, so that they do show the truth of the deed, and require aid of the justices. But if they, of their own head, will say that it is disseisin, their verdict shall be admitted at their own peril." But it has been held that the reasonable construction of such statute is that "if the jury undertake to decide the law they shall be subject to such penalty as may be imposed upon them for exceeding their jurisdiction," 64 and Grlan- ville says that the assize could not determine upon the law connected with disseisin. 65 Littleton, whose treatise was but their verdict must, besides, com- speaking, was only an essay. Its prehend the whole matter in trial, author "must be 'regarded simply and decide as well upon the fact as as a learned foreigner, and some- upon the point of law that may times showing that want of thor- arise out of it; in other words, they oughness and precision which even must pronounce both on the com- a learned man may display when mission of a certain fact, and on writing on subjects which his previ- the reason which makes such fact ous education had not particularly to be contrary to law. ' ' De Lolme 's fitted him to appreciate, and espe- Const. Eng. p. 175. Also in State cially when discussing such a subject v. Croteau, 23 Vt. 14, 54 Am. Dec. as the common law of England." 90, which was overruled in State v. Pierce v. State, 13 N. H. 546. Burpee', 65 Vt. 1, 36 Am. St. Eep. 64— Pierce v. State, 13 N. H. 536; 775, a well considered opinion re- State v. Burpee, 65 Vt. 1, 19 L. E. viewing all the authorities. A. 145, 36 Am. St. Eep. 775. 63 — The decisions of courts Of 65— Glanville (liber 13, cc. 20, 21) justice furnish the most certain and states that if the demandant object authoritative evidence of what the to put himself upon the grand assize, rules of common law are. Bl. Comm. he must show some cause why the 69-73; 1 Kent, Comm. 473. assize shall not proceed. If the ob- One of our courts has very proper- jection be admitted, the assize shall ly said, in criticism of De Lolme 's thereby cease, so that the matter statement, that this work, strictly shall be verbally pleaded and deter- §72] Pkovince of Court and Juey. ■149 written between the years 1461 and 1463, says that if the jurors will take upon themselves the knowledge of the law upon the matter, they may give their verdict generally, as put in their charge. 66 Lord Coke, who wrote nearly two centuries later, says: "Although the jury, if they will take upon them (as Littleton here saith) the knowledge of the law, may give a general verdict, yet it is dangerous for them so to do, for, if they do mistake the law, they run into the danger of an attaint." 67 This clearly denies the right of the jury "to take upon them the knowledge of the law," as Littleton .quaintly expresses it, for, if they had this right, they could not ' ' run into the danger of an attaint. ' ' It may be further remarked that Coke did not understand Littleton as laying down the limits of the duties of jurors, or as meaning to go any further than to allude to the statute. 68 mined in court, because it is then a question of law, etc. If the assize could not determine questions of law, it would be most groundless assumption to say that they could be determined by the jury, who were to find only collateral facts out of the points of assize. The citation of Glanville is a strong authority against the right of the jury to decide the law upon the general issue involving law and the facts. ' Pierce v. State, 13 N. H. 536; State v. Burpee, 65 Vt. 1, 19 L. R. A. 145, 36 Am. St. Eep. 775. 66— Littleton, Tenures, § 368. Gilchrist, J., of the New Hamp- shire Supreme Court, comments on this passage as follows: "It is to be remembered that Littleton, in the section cited, was not examining the rights or powers of juries. He was discussing matters very different. The passage was introduced in ex- plaining the pleadings in real actions relative to estates upon condition. His remarks are, in brief, that, after an estate tail is determined for de- fault of issue, the donor may enter by force of the condition. But in the pleadings he must vouch a rec- ord, or show a writing under seal, proving the condition; but though no writing was ever made of the condition, a man may be aided upon such condition by a verdict taken at large upon an assize of novel dis- seisin, for as well as the jurors may have connusance of the lease, they also as well may have connusance of the condition which was declared and rehearsed upon the lease. And in all actions where the justices will take the verdict at large, there the manner of the whole entry is put in issue." Then follows the statement quoted: "An extended examination of the rights of juries would have been foreign to the particular matter in hand, and it was necessary for him merely to state the effect of a general verdict relative to estates upon condition." Pi<5rce v.' State, 13 N. H. 546. 67— Co. Litt. 228a. 68— Pierce v. State, 13 N. H. 542. 150. Insteuctions to Jubies. [§72 In Blackstone's Commentaries it is said,: "And such public or open verdict may be either general — guilty, or not guilty — or special, — setting forth all the circumstances of the case, and praying the judgment of the court; whether, for instance, on the facts stated, it be murder, manslaugh- ter, or no crime at all. This'is where they doubt the matter of law, and therefore choose to leave it to the determination of the court, though they have an unquestionable right of determining upon all the circumstances, and finding a gen- eral verdict, if they think proper to so hazard a breach of their oaths ; and if their verdict be notoriously wrong, they may be punished, and the verdict set aside by attaint at the suit of the king, but not at the suit of the prisoner." 69 § 73. Rule in America and arguments for or against right. The doctrine that in criminal cases the jury should have the right to determine the law and the facts was recognized in the American Colonies as early as 1735. 70 Immediately 69 — 4 Bl. Comm. 361. be so, they will say we are guilty 70 — The trial of John Peter Zen- of publishing a false libel, and not ger for libel, before James De Lancy, otherwise." Mr. Chief Justice: Chief Justice, in the Province of "No, Mr. Hamilton, the jury may New York, August 4, 1735, is re- find that Mr. Zenger printed and ported, as follows: Mr. Chief 1 Jus- published those papers, and leave it tice: "All words are libelous, or to the court to judge whether they not, as they are understood. Those are libelous. You know this is very who are to judge of the words must common. It is the nature of a spe- judge whether they are scandalous cial verdict, where the jury leave or ironical, tend to the breach of the matter of law to the court." the peace, or are seditious. There Mr. Hamilton: "I know, may it can be no doubt of it. ' ' Mr. Hamil- please your honour, the jury may do ton, attorney for the defendant, so; but I do likewise know that they said: "I thank your honour. I am may do otherwise. I know they glad to find the court of this opin- have the right, beyond all dispute, ion. Then it follows, that those to determine both the law and the twelve men (the jurors) must under- fact; and where they do not doubt stand the words in the information of the law, they ought to do so." to be scandalous, that is to say, 17 Howell's St. Tr. 675, 706. Also false; for I think it is not pretended in State v. Daley, 54 Ore. 514, 103 they are of the ironical sort; and Pae. 502. when they understand the words to §73] Peovince op Coxjet and Jtjey. 151 preceding the Eevolution, the arbitrary temper and unau- thorized acts of the judges holding office directly from the crown made the independence of the jury, in law as well as in fact, a matter of great popular importance. 71 The doctrine was recognized for some time after the adoption of the Federal Constitution, but the fear that a judge elected by popular vote might encroach upon the rights of personal liberty in the trial of criminal actions has been very much dispelled, except possibly in causes in- volving political questions, and at the present time, in the absence of constitutional or statutory provisions making the jury in a criminal action the judges of the law and the facts, the doctrine referred to rarely obtains. 72 The Amer- ican decisions in which it has either been held or said that the jury are not bound \ to follow the instructions of the court, have been overruled, either expressly or impliedly, by subsequent decisions in the same jurisdictions, 73 and 71— Williams v. State, 32 Miss. 389, 66 Am. Dec. 615. 72 — Williams v. State, 32 Miss. 389, 66 Am. Dec. 615; State v. Daley, 54 Ore. 514, 104 Pac. 1, 103 Pac. 502. As to constitutional and statu- tory provisions, see § 74, post. 73 — State v. Snow, 18 Me. 348, overruled in State v. Wright, 53 Me. 343; People v. Croswell, 3 Johns. Cas. (N. Y.) 375 (the court were evenly divided on the question in this case, but subsequent New York cases have uniformly denied the right of the jury to disregard the instructions, as is shown by the cases cited in the following note) : Kane v. Com., 89 Pa. St. 522, 33 Am. Eep. 787n (all other Pennsylvania decisions take the opposite view); Butler v. State, 7 Baxt. (Tenn.) 36 (all other Tennessee eases take the opposite view) ; State v. Freeman, 63 Vt. 496; State v. Meyer, 58 Vt. 463; State v. Croteau, 23 Vt. 14, 54 Am. Dec. 90; State v. Wilkinson, 2 Vt. 480, 21 Am. Dec. 560 (the Ver- mont eases are expressly overruled by the case of State v. Burpee, 65 Vt. 1, 19 L. E. A. 145, 36 Am. St. Eep. 802n, in a well-considered opin- ion, reviewing all the authorities) ; Doss v. Com., 1 Grat. (Va.) 557- (overruled in Brown v. Com., 86 Va. 466); United States v. Wilson, Baldw. 78, Fed. Cas. No. 16,730 (all other federal cases maintain the con- trary doctrine). The doctrine was recognized in Massachusetts in Com. v. Kneeland, 20 Pick. 206; Com, v. Knapp, 10 Pick. 477, 20 Am. Dec. 534; but later rejected in Com. v. Porter, 10 Mete. 263; Com. v. Anthes, 5 Gray 185. In Sparf & Hansen v. United States, 156 U. S. 51, 39 L. Ed. 343, Mr. Justice Harlan in a masterly manner discusses this question, and 152 Instkuctions to Jubibs. [§73 there is no longer any doubt existing as to the jury's duty in the premises. 74 says: "But upon principle, where the matter is not controlled by ex- press constitutional or statutory provisions, it cannot be regarded as the right of counsel to dispute be- fore the jury the law as declared by the court." 74 — Alabama. Washington v. State, 63 Ala. 135, 35 Am. Eep. 8; Batre v. State, 18 Ala. 119; State v. Jones, 5 Ala. 666. Arkansas. Sweeney v. State, 35 Ark. 586; Winkler v. State, S2 Ark. 360; Edwards v. State, 22 Ark. 253; Pleasant v. State, 13 Ark. 539. California. People v. Ivey, 49 Cal. 56; People v. Anderson, 44 Cal. 70. Delaware. State v. Jeandell, 5 Har. 475. Florida. Lewton v. Hower, 35 Fla. 58. Iowa. State v. Miller, 53 Iowa 154. Kentucky. Montee v. Com., 3 J. J. Marsh. 132. Maine. State v. Stevens, 53 Me. 548; State v. Wright, 53 Me. 328. Michigan. People v. Waldvogel. 49 Mich. 337; People v. Mortimer, 48 Mich. 37; Hamilton v. People, 29 Mich. 174. Minnesota. State v. Bheams, 34 Minn. 18. Mississippi. Williams v. State, 32 Miss. 389, 66 Am. Dec. 615. Missouri. Massey v. Tingle, 29 Mo. 437; Hardy v. State, 7 Mo. 303. Nebraska. Parrish v. State, 14 Neb. 60. New Hampshire. Lord v. State, 16 N. H. 325, 41 Am. Dec. 729; Pierce v. State, 13 N. H. 536. New York. Duffy v. People, 26 N. Y. 591; Carpenter v. People, 8 Barb. 603; Safford v. People, 1 Parker Cr. Cas. 474. Ohio. Adams v. State, 29 Ohio St. 412; Montgomery v. State, 11 Ohio 424; Bobbins v. State, 8 Ohio St. 167. Pennsylvania. Com. v. McManus, 143 Pa. 64; Harrison v. Com., 123 Pa. 508; Com. v. Goldberg, 4 Pa. Super. Ct. 142; Pennsylvania v. Bells, Addison, 159. South Carolina. State v. Jones, 29 S. C. 201; State v. Drawdy, 14 Bich. 90. Tennessee. Hannum v. State, 90 Tenn. 647; Harris v. State, 7 Lea 554; McGowan v. State, 9 Yerg. 195. Texas. Nels v. State, 2 Tex. 280; Johnson v. State, 5 Tex. App. 423. Vermont. State v. Burpee, 65 Vt. 1, 19 L. B. A. 145, 36 Am. St. Bep. 775. Virginia. Brown v. Com., 86 Va. 466; Dejarnette v. Com., 75 Va. 867; Com. v. Garth, 3 Leigh 761. West Virginia. State v. Dickey, 48 W. Va. 325. United States. Mobile & O. B. Co. v. Wilson, 22 C. C. A. 101, 76 Fed. 127; United States v. Keller, 19 Fed. 636; United States v. Mortis, 1 Curt. 23, Fed. Cas. No. 15,815; United States v. Shive, Baldw. 510, Fed. Cas. No. 16,278; Stettinius v. United States, 5 Cranch, C. C. 573, Fed. Cas. No. 13,387; United States v. Great- house, 4 Sawy. 457, Fed. Cas. No. 15,254. "This humane provision in favor of the accused * * * was never designed to abridge the peculiar province of the court in the instruc- tions to the jury on questions of law. Its object was wholly different. §73] Pbovinoe of Court and Juby. 153 Accordingly, it is proper to instruct the jury that they are bound to follow the instructions of the court. 75 It has been held, however, that where the charge directs the jury that they "are judges of the law, and have the right to disregard the instructions of the court, the defendant cannot com- plain of the error, because it is in his favor. 76 The judges of courts are selected with a view to their knowledge of the law, and jurors with a view to their practical good sense on matters of fact. * * * It is the duty of the jury, therefore, to regard the law as determined by the court, and this duty is required by the obliga- tions of the juror's oath; and in the proper and conscientious discharge of their duty, a jury cannot, or, in other words, have no right to, deter- mine that the court has erred in its instructions as to the law, and there- fore to disregard the law as laid down to them by the court." Rob- bins v." State, 8 Ohio St. 167. "The power of the jury to find a general verdict upon the general issue in a criminal case does not imply a right to decide the law of the case. The power is the same in a civil ease, and yet it has never been supposed that the power of the jury, in a civil case, to render a general verdict on the general issue, was a right or implied a right to decide the law of the case. The right and the power of the jury, whatever they may be, as to decid- ing the law of the case, are exactly alike in both classes of cases. In both, the right and the power of the court are the same to set aside the verdict, if against the defendant, on the ground that it was a verdict against law. * * * The most that can be said is that the jury have the power of rendering a gen- eral verdict upon the general issue, either according to law or against law, but no one can suppose that they have a right to render a Verdict against law." Stettinius v. United States, 5 Cranch, 0. C. 593, Fed. Cas. No. 13,387. Chief Justice Shaw, of Massachu- setts, has well said: "The true glory and excellence of the trial by jury is this: That the power of deciding fact and law is wisely divided; that the authority to decide questions of law is placed in a body well qualified, by a suitable course of training^ to decide all questions of law; and another body, well quali- fied for the duty, is charged with deciding all questions of fact, defi- nitely; and whilst each, within its own sphere, performs the duty in- trusted to it, such a trial affords the best possible security for a safe administration of justice and the security of public .and private rights." Com. v. Anthes, 5 Gray (Mass.) 198. 75— Iowa. State v. Miiler, 53 Iowa 156. Ohio. Bobbins v. State, 8 Ohio St. 167. Tennessee. Harris v. State, 7 Lea 553; Dale v. State, 10 Yerg. 555. United States. Mobile & O. E. Co. v. Wilson, 22 C. C. A. 101, 76 Fed. 127. 76 — Hannum v. State, 90 Tenn. 154 Instructions to Jueies. [§73 The principal argument in favor of the doctrine that the jury have the right to disregard the court's instructions is that this is necessary for the preservation of the liberty of the citizen, and the protection of innocence against the con- sequences of partiality and undue bias in favor of the prose- cution. 77 The reasoning of Justice Kent sustains* such argu- ment, 78 but it will be noted that a similar contention was disposed of with scant courtesy by Lord Mansfield in the Dean of St. Asaph's Case, 79 and the argument has been 647; Harris v. State, 7 Lea (Tenn.) 556. No authority was cited in support of this holding, and in neither case was there any attempt made to state the reasons therefor. On principle, it is believed that the court was in error. It may readily be imagined that under such an instruction the jury might adopt a rule of law more prejudicial than that laid down by the court, in case' of widespread popular prejudice against the pri- soner. 77— See State v. Croteau, 23 Vt. 14, 54 Am. Dec. 90. 78—' 'It is not likely often to happen that the jury will resist the opinion of the court on the matter of law. That opinion, will generally receive its due weight and effect; and in civil cases it can, and always ought to, be ultimately enforced by the power of setting aside the ver- dict; but in human institutions, the question is not whether every evil contingency can be avoided, but what arrangement will be produc- tive of the least inconvenience. And it appears to be most consistent with the permanent security of the sub- ject that in criminal cases the jury should, after receiving the advice and assistance of the judge as to the law, take into their considera- tion all the circumstances of the case, and the intention with which the act was done, and to determine upon the whole whether the act done be or be not within the meaning of the law. This distribution of power, by which the court 4 and jury mutually assist and mutually check each other, seems to be the safest, and consequently the wisest, ar- rangement in respect to the trial of crimes. The constructions of judges on the intention of the party may often be (with the most upright motives) too speculative and refined, and not altogether just in their ap- plication to every case. Their rules may have too technical a cast, and become, in their operation, severe and oppressive. To judge accurately of motives and intentions does not require a master's skill in the science of law. It depends more on a knowledge of the passions, and of the springs of human action, and may be the lot 1 of ordinary experi- ence and sagacity." People v. Cros- well, 3 Johns. Cas. (N. Y.) 376. 79 — "Jealousy of leaving the law to the court, as in other cases, is now, in the present state of things, puerile rant and declamation. The judges are totally independent of §73] Province of Court and -Jury. 155 held without weight in a well considered Vermont case. 80 It will also be .noted that Justice Kent seems to overlook entirely the fact that if the defendant is prejudiced by the instructions he has an ample remedy by appeal. He also overlooks the fact that jurors have no such knowledge of or training in law as would enable them 'to determine questions of law intelligently, 81 and uncertainty in the law would result from permitting the jury to disregard the instruc- tions. 82 Another reason is that, in case of conviction, the the ministers that may happen to be, and of the king; their tempta- tion is rather to the popularity of the day." Eex v. Dean of St. Asaph, 3 Term E. 428, and note. 80 — "When examined in the light of facts, this argument is without weight. This is a 'government of the people, by the people, and for the people.' In this state, the mak- ing of constitutions and the enact- ing of laws is vested in the people. However elected or- appointed, our judges are the servants of the people, to . administer justice according to law and equity, and it would be sufficient to say that they have never been recreant to the trust im- posed upon them. Whenever a rule of law as administered by the courts becomes obnoxious, to the people, or they think it detrimental to their best interests, they have only to exercise their power to abolish or modify it to rid themselves of it." State v. Burpee, 65 Vt. 1, 19 L. E. A. 145, 36 Am. St. Eep. 775, over- ruling State v. Croteau, 23 Vt. 14, 54 Am. Dee. 90. 81 — Indiana. Townsend v. State, 2 Blackf. 158. Maine. State v. Wright, 53 Me. 339. Massachusetts. Com. y. Anthes, 5 Gray 235. New Hampshire. Pierce v. State, 13 N. H. 570. New York. Duffy v. People, 26 N. T. 591. United States. United States v. Morris, 1 Curt. 23, Fed. Cas. No. 15,815. English. Eex v. Dean of St. Asa,ph, 3 Term E. 428, and note. It can hardly be supposed that men drawn each term from other occupations, who make no preten- sions to legal knowledge, and who are not responsible, even to impeach- ment, for their acts, will be more learned, sound and safe expositors of the principles of law than the judges. Pierce v. State, 13 N. H. 570. In the case of the Dean of St. Asaph, Lord Mansfield said: "Upon the reason of the thing, and the eternal principles of justice, the jury ought not to' assume the juris- diction of law; they do not know — are not presumed to know — anything of the matter; they do not under- stand the language in which it is conceived, or the meaning of the terms; they have no rule to go by but their passions and wishes. ' ' Eex v. Dean of St. Asaph, 3 Term E. 428, and note. - 82— Maine. State v. Wright, 53 Me. 339. 156 Instkuctions to Jxjkies. [§73 defendant may obtain ample redress on appeal if the court has stated the law incorrectly in the instructions, while, on the other hand, if the jury take the decision of the law into their own hands, and wrongfully acquit the defendant, the state has no redress against their error, because the decision of the jury is final in c'ase of an acquittal. 83 Suppose, how- ever, that the jury, under excitement or popular prejudice, wrongfully convict the defendant. It has been well said that, if the jury are to decide all the law, their decisions can never be reversed, since there are no means of ascertaining their decision upon a question of law so as to bring it into Massachusetts. Com. v. Anthes, 5 Gray 185. Michigan. Hamilton v. People, 29 Mich. 173. Nebraska. Parrish v. State, i4 Neb. 63. New Hampshire. Pierce v. State, 13 N. H. 570. Pennsylvania. Pennsylvania v. Bell, Addison, 156. Tennessee. Harris v. State, 7 Lea 538. United States. United States v. Greathouse, 4 Sawy. 457, Fed. Cas. No. 15,254; United States v. Battiste, 2 Sumn. 240, Fed. Cas. No. 14,545. English. Bex v. Dean of St. Asaph, 3 Term R. 428, and note. The interpretation of the law can have no permanency or uniformity, nor can it become generally known, except through the action of the courts. Hamilton v. People, 29 Mich. 173. "The decisions of one jury fur- nish no rule for the action of an- other." Pierce v. State, 13 N. H. 570. If the jury are judges of the law, there is no method of determining with certainty what they have held it to be. Parrish v. State, 14 Neb.. 63. "This can never be known, there- fore can never be established as precedent to guide future juries, even if worth preservation. * * * The worst feature still of all this is that in eases of the most intelli- gent and upright juries, conscious of their want of legal knowledge, the instructions of the court will be followed; but in cases of ignorant and corrupt juries (and such are possible, at least) we are always likely to have the law as given by the court disregarded, and the crude or corrupt, conclusions of ignorance or corruption made the standard for decision. The most competent juries to judge of the law will never be likely to assume such responsibility. The most incompetent and corrupt will be the sole practical repositories for the exercise of this high judicial prerogative. No such rule having such results can possibly be sound, either in theory or practice, but can only be evil, and that continually." Harris v. State, 7 Lea (Tenn.) 553. 83 — State v. Jeandell, 5 Har. (Del.) 475; State v. Drawdy, 14 Eich. (S. C.) 90; Stettinius v. United States, 5 Cranch, C. C. 573, Fed. Cas. No. 13,387; Eex v. Dean of St. Asaph, 3 Term. E. 428, and note. § 74] Province of Court and Jury. 157 review before an appellate court. 84 To permit the jury to decide the law to be contrary to what they are told in the instructions has also been declared a violation of the Fed- eral Constitution, and a number of the state courts have also held that it is a violation of the state constitutional pro- visions. 85 So, it has been urged as a reason against the practice, that if the jury find the law contrary to the direc- tion of the court, the court is bound to set aside the verdict, and that it is not possible for the jury to have a right to do what the court is bound to undo. 86 In conclusion, it may be stated that such a rule would be contrary to a vast pre- ponderance of judicial authority, both in this country and in England. 87 § 74. Organic and statutory provisions regulating practice. In several states constitutional and statutory provisions state that the jury are the judges of the law and the facts in criminal cases, 88 but the courts differ widely as to the effect of such provisions. 84 — Stettinius v. United States, 5 tended to be permanent and eoex- Cranch, C. C. 573, Fed. Caa. No. tensive with the other departments 13,387; Freeman, J., in Harris, v. of government, and, as far as prac- State, 7 Lea (Tenn.) 556. ticable, independent of them; and 85 — State v. Wright, 53 Me. 329; therefore it is not competent for the Com. v. Anthes, 5 Gray (Mass.) 236; legislature to take the power of United States v. Morris, 1 Curt. 23, deciding the law from this judiciary Fed. Cas. No. 15,815; State v. Bur- department, and vest it in other pee, 65 Vt. 1, 36 Am. St. Eep. 775. bodies of men, — juries, — occasionally In this case it was said: "The doc- and temporarily called to attend trine that jurors are judges of the courts, for the performance of very law in criminal eases is repugnant important duties * * * very dif- to articles 4 and 10 of ch. 1 of the ferent from those of judges, and constitution of Vermont, which guar- requiring different qualifications,' ' anty to every person within this 86 — Townsend v. State, 2 Blackf. state 'a certain remedy' for all (Ind.) 151. wrongs, conformably to the laws, 87 — State v. Wright, 53 Me. 329. and that he shall not be 'deprived of 88 — Connecticut. "The court shall his liberty except by the laws of the state its opinion to the jury upon land.' " So, in Com. v. Anthes, 5 all questions of law arising in the Gray (Mass.) 236, it was said: trial of a criminal cause, and submit "The judiciary department was in- to their consideration both the law 158 Instructions to Juries. [§75 § 75. Provisions held to vest jury with right to disregard instructions — Propriety and necessity of instruc- tions. In Illinois it has been held that the jury are the judges of the law as well as of the facts, 89 and are not bound by the law as given by the court. 90 But it is also stated that the jury should not disregard the instructions unless they are prepared to state on their oaths that they are better judges and the facts, without any direction how to find their verdict." Gen. St. 1912, §1516. Georgia. ' ' The jury in all criminal cases shall be the judges of the law and the facts. ' ' Const, art. 1, § 2, par. 1; Pen. Code, § 1033. Illinois. "Juries in all criminal cases shall be judges of the law and the facts. " J. & A. Ann. St., H 4130. Indiana. "In all criminal cases whatever, the jury shall have the right to determine the law and the facts." Const, art. 1, §64; Burn's Ann. St. 1914, § 2136, subd. 5. Louisiana. "The jury in all crim- inal cases shall be the judges of the law and of the facts on the question of guilt or innocence, having been charged as to the law applicable to the case by the presiding judge." Const, art. 179. In charging the jury in criminal cases, the judge must limit himself to giving them a knowledge of the law applicable to the case. Const. & Eev. L. 1902, § 991. Maryland. "In the trial of all criminal cases, the jury shall be the judges of law, as well as of fact." Const, art 15, § 5. Massachusetts. "In all trials for criminal offenses it shall be the duty' of the jury to try, according to established forms and principles of law, all causes which shall be com- mitted to them, and, after having received the instructions , of the court, to decide at their discretion, by a general verdict, both the facts and the law involved in the issue, or to find a special verdict, at their election; but it shall be the duty of the court to superintend the course of the trials, to decide upon the' admission and rejection of evidence, and upon all questions of law raised ^during the trials, and upon all col- lateral and incidental proceedings, and also to charge the jury and to allow bills of exception." Eev. L. 1902, ch. 219, § 13. Oregon. In all criminal eases whatever, the jury shall have the right to determine the law and the facts, under the direction of the court, as to the law. Const, art. 1, §16. 89— Wohlford v. People, 148 111. 296; Spies v. People, 122 111. 1, 3 Am. St. Eep. 320n, petition for writ of error dismissed 123 U. S. 131, 31 L. Ed. 80; Davison v. People, 90 111. 223; Mullinix v. People, 76 111. 211; Adams v. People, 47 111. 376; Schnier v. People, 23 111. 17. 90— Spies v. People, 122 111. 1, 3 Am. St. Eep. 320n, petition for writ of error dismissed 123 TJ. S. 131, 31 L. Ed. 80; Fisher v. People, 23 111. 283; Schnier v. People, 23 111. 17. §75] Pbovince of Couet and Jury. 159 of the law than the court, 91 and in a late decision it was held that the effect of such rule has been to render the statute nugatory. 92 In Illinois it is customary to give the jury instructions" on the law of the case, 93 as well as to in- struct them that they are not bound by the court's instruc- tions. 94 In Indiana it has been held that the jury are the judges of the law and evidence, 95 and that the instructions of the court as to the law of the case are merely advisory, .and without binding force on the jury, 96 being given not to bind 91— Spies v. People, 122 111. 1, 3 Am. St. Eep. 320n, petition for writ of error dismissed 123 U. S. 131, 31 L. Ed. 80; Davison v. People, 90 111. 221; Mullinix v. People, 76 111. 211; Fisher v. People, 23 111. 283. 92' — ' • The statute which makes the jury the judges of the law and the facts has been often severely criti- cized by the profession, and justly so. Instead of resorting to the legis- lature to repeal it, the covfrts have from time to time qualified it, until finally ' it has been rendered abso- lutely nugatory. No honest and in- telligent jury would, upon reflection, say that by their study and experi- ence they were better qualified to judge of the law than the court, and certainly if they must be. 'con- vinced, upon a deep and confident conviction, that the court is wrong and they are right,' they would never hesitate to follow the law as given by the court, and the statute is thereby rendered meaningless. The legislature should have repealed it long ago." Juretich v. People, 223 111. 484. 93— See Spies v. People, 122 111. 1, 3 Am. St. Eep. 320n, petition for writ of error dismissed 123 U. S. 131, 31 L. Ed. 80; Mullinix v. People, 76 111. 211; Schnier v. People, 23 111. 17. 94— See Spies v. People, 122 111. 1, 3 Am. St. Eep. 320n, petition for writ of error dismissed 123 U. S. 131, 31 L. Ed. 80; Davison v. People, 90 111. 221; Mullinix v. People, 76 111. 211. 95— Walker v. State, 136 Ind. 663; Bird v. State, 107 Did. 154; Fowler v. State, 85 Ind. 538; McDonald v. State, 63 Ind. 544; McCarthy v. State, 56 Ind. 203; Clem v. State, 42 Ind. 420, 13 Am. Eep. 369; Williams v. State, 10 Ind. 503. 96— Bird v. State, 107 Ind. 154; Nuzum v. State, 88 Ind. 599; Powers v. State, 87 Ind: 144; Keiser v. State, 83 Ind. 234; McDonald v. State, 63 Ind. 544; Williams v. State, 10 Ind. 503. An instruction that the jurors are "the exclusive and «ole judges of what facts have been proven. * * * You may also determine the law for yourselves, and by that is not meant that you have the right to set aside the law and make your own law. You determine the law as it is enacted by the Legislature and con- sidered and interpreted by the higher court of record, and in that way you have a right to determine the law for yourselves, but not to 160 Insteuctions to Jtjkies. [§75 the consciences of the jury but merely to "enlighten their judgments." 97 The jury are not bound by decisions of the supreme court, and may decide the law to be different from that enunciated by such decisions, 98 and the right of the jury to declare a statute unconstitutional seems to be recog- nized in an early case where it was held that the court's refusal to permit counsel to argue to the jury the consti- tutionality of a statute was erroneous. 99 The jury may also determine whether the facts stated in an indictment con- stitute a public offense, but have no right to determine the sufficiency in form of the indictment, or that it was not properly found and returned. 1 It has, however, been held that the constitutional pro- vision could not be rightfully construed to mean that the jury are the sole judges of the law in every respect in a criminal cause, 2 and it is unquestionably the duty of the jury to give careful and respectful consideration to the instruc- tions of the court, 3 especially if they are in doubt as to what the law of the case may be. 4 Also they should not disregard make your own law," is merely 48 Am. Eep. 171; Daily v. State, 10 advisory as to the manner of deter- Ind. 536. mining the law and is not erroneous. 2 — See Anderson v. State, 104 Ind. Lesueur v. State, 176 Ind. 448. 467, where an instruction which in- 97 — Hudelson v. State, 94 Ind. formed the jury that, "even if all 426, 48 Am. Rep. 171; Bissot v. State, facts alleged in the indictment are 53 Ind. 408. established beyond a reasonable 98^-Fowler v. State, 85 Ind. 538; doubt, you have still the right to Keiser v. State, 83 Ind. 236. In this determine whether or not such facts, case it was said: "The decisions of when so established, constitute a the supreme court are no more P ublic offense under the laws of th e binding upon juries in such cases state > and > if y ou determine that than the charge of the judge trying they do not you have the right to ., J 5 ., 'f ., ., acquit the defendant," was held the cause. Both may well aid the , „ . ... ... ,. properly refused as implying an un- jury in determining the law apph- „ ■ ., , . ,. J ' B rr necessarily extreme construction of cable to the case, but neither source the constitutional right of a jury in of information is legally binding a criminal ease- upon them, if they choose to deter- 3— Anderson v. State, 104 Ind. mine the law for themselves." 467; Keiser v. State, 83 Ind. 236; 99 — Lynch v. State, 9 Ind. 541. McDonald v. State, 63 Ind. 544. 1— Hudelson v. State, 94 Ind. 426, 4— Bird v. State, 107 Ind. 154. § 75] Province of Court and Jury. 161 the instructions without proper reason, 5 and it is customary to caution the jury in this respect. Instructions should be given as to the law of the case, 7 and it is not only proper for the court to instruct the jury that they are judges of the law as well as of the facts, 8 but it is the duty of the court, under statutory provisions, to do so, 9 and a refusal of an instruction to this effect, 10 or the giving of an instruction that the jurors must be governed by the instructions, constitutes reversible error. 11 If the jury follow an erroneous instruction, to the injury of a de- fendant, the judgment should be reversed. 12 In Maryland it has been held that the jury have the right in criminal cases to disregard the instructions, 13 and in one of the decisions it was said that the constitutional provision making juries judges of the law as well as the facts "is merely declaratory, and has not altered the pre-existing law regulating the powers of the court and jury in criminal cases. ' ' On this point the court is in error, for it has been shown that at common law the jury have no right to disre- gard the court's instructions. 14 In that state it is held that the provision making the jury judges of the law gives them no right to determine the constitutionality of a statute, and that it is proper for the court to prevent counsel from argu- ing that question before the jury. 15 It seems to be well settled in that state that the court is not obliged to instruct 5— Blaker v. State, 130 Ind. 203. 12— Hudelson v. State, 94 Ind. 429, 6— Blaker v. State, 130 Ind. 203; 48 Am. Rep. 171; Clem v. State, 42 Bird v. State, 107 Ind. 154; Keiser Ind. 420, 13 Am. Rep. 369. v. State, 83 Ind. 236. 13— Beard v. State, 71 Md. 275, 7— Parker v. State, 136 Ind. 284. 4-L. R. A. 675n, 17 Am. St. Rep. 536; 8— Walker v. State, 136 Ind. 666; Norwood v. State, 49 Md. 531; Powers v. State, 87 Ind. 144; Fowler Wheeler v. State, 42 Md. 563; Frank- v. State, 85 Ind. 538. lin v. State, 12 Md. 236. 9— Hudelson v. State, 94 Ind. 426, 14— Franklin v. State, 12 Md. 236. 48 Am. Rep. 171. See also, §§ 72, 73, ante. 10— McCarthy v. State, 56 Ind. 15— Franklin v. State, 12 Md. 236. 203. 11— McDonald v. State, 63 Ind. 544. Blashfield Vol. I— 11 162 Instructions to Juries. [§75 the jury, even when requested by counsel or jury, 16 but the giving of advisory instructions as to the law of the case is proper, 17 and it is customary to instruct that, the jury are not bound by the court's instructions. 18 A defendant is entitled to correct instructions, if any are givenyand is enti- tled to except to erroneous instructions, 19 and if the jury follow an erroneous instruction to the defendant's injury, the judgment should be reversed. 20 In Connecticut, where there is special legislation on the subject, it is also probable that the jury may disregard the 16— Swann v. State, 64 Md. 423; Broil v. State, 45 Md. 356; Franklin- v. State, 12 Md. 246. "It is impossible that the legisla- ture contemplated giving the right to parties in criminal eases to have instructions upon the law and the legal effect of the evidence, and exceptions to such rulings, in the face of the constitutional provision under which juries are at liberty to treat such instructions with utter disregard, and to find their verdict in direct opposition to them." Broil v. State, 45 Md. 360. "Both before and since the con- stitutional declaration upon the sub- ject, it was and has been the prac- tice of judges in some parts of the state to decline to give instructions to the jury in criminal cases under any circumstances, while in other parts of the state it has been the practice for the judges to give ad- visory instructions when requested so to do. It seems to have been regarded as entirely a matter of discretion with the judge, there be- ing no positive duty requiring him to pursue the one course or the other." Beard v. State, 71 Md. 275, 4 L. E. A. 675n, 17 Am. St. Eep. 536. 17 — Though the jury are the judges of the law, they are un- learned, and the court has the ulti- ' mate power of setting aside their verdict if they should misapply the law, to the injury of the accused. Beard v. , State, 71 Md. 275, 4 L. E. A. 675n, 17 Am. St. Eep. 536; For- wood v. State, 49 Md. 531; Wheeler v. State, 42 Md. 563. The practice of instructing the jury, notwithstanding the fact that they may disregard the instructions, "is founded on the soundest practi- cal reason and good sense. For though the juries are made judges of the law, they are unlearned, and not infrequently composed, in part at least, of persons wholly uninstructed as to the laws under which they live. When sworn upon the panel, it becomes their duty to decide the case according to the established rules of law of the state, and not according to any capricious rules of their own. * * * To enable them to accomplish that object, no proper light should be withheld from them. ' ' Beard v. State, 71 Md. 275, 4 L. E. A. 675n, 17 Am. St. Eep. 536. 18— Swann v. State, 64 Md. 423; Wheeler v. State, 42 Md. 563. 19— Beard v. State, 71 Md. 275, 4 L. E. A. 675n, 17 Am. St. Eep. 536. 20— Swann v. State, 64 Md. 423. §75] Province of Court and Jury. 163 instructions of the court, 21 and the decisions would seem to indicate that the jury have the right to declare statutes unconstitutional. 22 In Oregon, the constitution confers upon the jury, in all criminal cases, the right to determine the law and the facts ' ' under the direction of the court as to the law, ' ' thereby restricting the authority of the jury to a much greater ex- tent than is prescribed in the states previously mentioned. Notwithstanding the restricted application of such doctrine, the jury have the power to disregard instructions and find a 21 — See State v. Buckley, 40 Conn. 247. See also, State v. Thomas, 47 Conn. 546, 36 Am. Rep. 98n. But see State v. McKee, 73 Conn. 18, 49 L. R. A. 542, 84 Am. St. Rep. 124, wherein it was held that the jury in a criminal case are not the judges of the constitutionality of the stat- ute upon which the complaint is based. 22 — In the first case, the trial court, after telling the jury that they were the judges of the law as well as the facts, instructed them as follows: "But the jury are the judges of the law under the same obligations that attach to the judge on the bench. They are not author- ized to say that that is not law which is the law of the state. The supreme court has decided that sec- tion to be constitutional. * * * Will you say it is unconstitutional, when they say it is constitutional? The next case to be tried may be a civil case, the law applicable to which may have been decided by the same supreme court; you would not suffer your private views and inter- ests to influence you to disregard the law thus decided. * * * If you decide that to be unconstitu- tional which the supreme court holds to be constitutional, you will disturb the foundations of law. "But after all, you are the judges Of the law, and if, on your consciences, you can say this section is unconstitu- tional, then you ought to acquit the. accused." The reviewing court saw no error in this very contradictory instruction, and in concluding their opinion said: "The jury could not have understood that they were bound by the opinion of the court as in civil cases, for at the close they were distinctly told that they were the judges of the law, and that, if they conscientiously believed that the act was unconstitutional, they ought to acquit the accused. We do not advise a new trial." From this quotation it would seem that the reviewing court considered that the jury had the right to declare a statute unconstitutional. State v. Buckley, 40 Conn. 247. In a subsequent case, the trial court gave a similar instruction, which was, in substance, as follows: That the jury were the judges of the law and fact, and had the right to declare a statute unconstitutional if they so considered it, but that they were as much bound by the law as the judge on the 164 Instructions to Juries. [§75 defendant not guilty. 23 "Though such power of the jury is recognized, their right, in the trial of a criminal action, to ignore the charge of the court, may well be doubted, for if an instruction misstates the law applicable to the facts involved, and the defendant is found guilty, the error which has been committed can be corrected on appeal. If, how- ever, the jury assuming to be the judges of the law, contrary to the direction of the court, return a verdict of not guilty in a criminal action, the public necessarily sustains an in- jury which cannot be legally corrected. ' ' 24 In a later case it was held that in order to effectuate the clause "under the direction of the court as to the law," it is the plain duty of the jury to accept and apply the law as given them by the court, and that the power to disobey the directions of the court does not imply either a legal or moral right to do so. 25 bench, and that it was not to be presumed that they would be guilty of such an absurdity as to declare a statute unconstitutional which the court had declared consti- tutional. Counsel contended that the supreme court had never held the statute constitutional, and that the court misled the jury and pre- vented them from freely exercising their right to judge for themselves of the validity of the statute. The , reviewing court brushed aside the objection by saying that the court had in fact decided the question as to the validity of the statute, and declined to grant a new trial. State v. Thomas, 47 Conn. 546, 36 Am. Rep. 98n. If the jury are judges of the law in the broad sense that they may decide the law to be directly con- trary to what the court has told them in the instructions, it is hardly an extension of this right to hold them entitled to pass on the consti- tutionality of a statute, and the court which holds that the jury may disregard the instructions of the trial judge, but cannot pass on the constitutionality of a statute, seems to be guilty of an inconsistency. 23— State v. Daley, 54 Ore. 514, 104 Pac. 1, 103 Pac. 502. Such a verdict cannot be set aside, and necessarily discharges the de- fendant under the former jeopardy provision (Const. Ore. art. 1, §12). Id. 24— State v. Daley, 54 Ore. 514, 104 Pac. 1, 103 Pac. 502. 25 — An instruction to the jury, concluding as follows: "In which event they are the judges of the law and the fact, and are under no obligation to take it from the court whatever," held not in harmony with the constitution or with" the former holdings of the court. State v. Wong Si Sam, 63 Ore. 266, 127 Pac. 683. See also, State v. Walton, 53 Ore. § 76] Province op Oouet and Juey. 165 § 76. Provisions held not to vest jury with right to disre- gard instructions. In Georgia all the earlier decisions affirm, in the most unmistakable terms, the right of the jury to disregard the instructions and determine the law for themselves, 26 but the last decision upholding such right was handed down in 1862. 27 Thereafter the decisions, the first of which was made in 1871, laid down the contrary doctrine, without any refer- ence to the rule of the earlier decisions, and it is now well settled that the instructions given by the court are the law of the case, to be adopted by the jury and applied to the facts, without reference to what their own opinions of the law may be. 28 The provision on^this subject, which was merely statutory until 1877, was incorporated into the con- stitution during that year. In commenting on this it was said, in one decision: "The constitution of 1877 * * * simply re-enacts, in identical language, the provisions of the Code thereon. It emphasizes it by inserting it in the constitution; but it put it there subject to the construction which had been put on the same words in the Code." 20 However much the practice of permitting juries to disre- gard the court 's instructions is to be deprecated, it seems to the writer that a provision that "the jury in all criminal 557, 102 Pac. 173, 101 Pac. 389, 99 being guilty of perjury in doing so, Pac. 431; State v. Eeed, 52 Ore. 377, they are guilty of perjury if they 97 Pac. 627. do not, for, in this ease, their find- 26 — McDaniel v. State, 30 6a. 853 ; ing is not their verdict. ' ' McDaniel Dickens v. State, 30 Ga. 383; Golden v. State, 30 Ga. 853. v. State, 25 Ga. 527; McPherson v. 27— McDaniel v. State, 30 Ga. 853; State, 22 Ga. 478; Keener v. State, Dickens v. State, 30 Ga. 383. 18 Ga. 194, 63 Am. Dec. 269; Mc- 28— Bouse v. State, 136 Ga. 356; Guffie v. State, 17 Ga. 497. See also, Hunt v. State, 81 Ga. 140; Danforth dictum in Holder v. State, 5 Ga. 441. v. State, 75 Ga. 614, 58 Am. Rep. If it is the misfortune of the jury 480; Ridenhour v. State, 75 Ga. 382; "to differ conscientiously from the Malone v. State, 66 Ga. 539; Robin- court, it is not only their right, but son v. St'ate, 66 Ga. 517; Hill v. their duty, to find a verdict accord- State, 64 Ga. 470; Anderson v. State, ing to the opinion -which they enter- 42 Ga. 9. tain of the law. And instead of 29 — Hill v. State, 64 Ga. 470. 166 Instructions to Juries. [§76 cases shall be the judges of the law and the facts," 30 clearly and unmistakably confers on the jury the right to determine the law independently, and in disregard of the court's instructions, that a contrary construction furnishes an ex- cellent example of judicial legislation, and that the early decisions have placed the proper construction on these statutes. In Louisiana the court is required by statute to instruct the jury as to the law applicable to the case. 31 There are also provisions, both constitutional and statutory, on the power of the jury to judge the law, 32 but the decisions con- flict as to their proper meaning. 33 The present rule is that 30 — Const. Ga., art. 1, § 2, par. 1; Code Ga. 1882, § 5018. 31— State v. King, 135 La. 117; State v. Carroll, 134 La. 965; State v. Tisdale, 41 La. Ann. 338; State v. Tally, 23 La. Ann. 677. 32— See § 74, ante. 33 — In State v. Ballerio, 11 La. Ann. 81, the court refused to re- verse for a refusal to instruct the jury that they "are the judges of the law as well as the facts;" that the "judge is to explain the law, and they are bound to listen to and weigh such explanation with due care and attention, although not bound to admit it as conclusive of the law should they differ in opinion from the judge," saying: "The question is whether, after a, sound and strictly legal charge, the court so far erred in refusing to add the above instructions as to authorize us to set aside the verdict. We think not." In State v. Scott, 11 La. Ann. 429, the judgment was reversed because the court instructed that ■* ' the jury are not the judges of the law and fact in a criminal case, but must take the law as laid down by the court." This instruction was char- acterized as absolutely erroneous, and in the syllabus the court said that it was safe, as a general rule, to regard the court's exposition of the law as conclusive, but that they are not bound to do so, and in ex- treme cases may disregard the court's instructions. These two decisions are difficult to construe, and have been cited by the supreme court, both in support of the proposition that the jury ought, as a general rule, to follow the instructions, but is under no compulsion to do so (State v. Tally, 23 La. Ann. 677), and also to sup- port the proposition that, while the jury has the power to disregard the instructions, yet in so doing it would violate its oath and duty (State v. Matthews, 38 La. Ann. 795). In State v. Jurche, 17 La. Ann. 71, the trial judge declined to instruct the jury "that, in finding a verdict, they were the judges of the law and facts," and gave the following in- structions: The jury "were the sole judges of the facts proved. It was their duty to apply the law as laid down by the court. That the jury § 76] Province op Court and Jury. 167 "the jury is bound to accept the law as laid down by the judge, and that, while it has power to disregard it, yet in doing so it would violate its oath and duty. ' ' 34 Notwith- standing the fact that it is now considered the duty of the jury to adopt the instructions of the court as the law of the case, it is nevertheless held to be the duty of the trial judge to instruct the jury that they are judges of the law and the facts, and reversible error for him to refuse such an instruction. 35 But it is also held that after giving such an instruction, the court must explain the modified sense in which they are so ; 36 that is to say, they should be directed to take and apply the law as laid down by the court. 37 This judicial juggling commends itself to reason in an equal degree with the old nursery jingle in which a mother gave her daughter permission to go swimming on condition that she did not go near the water. In Massachusetts, in one case decided before the enact- ment of the present statute regulating the question, there are expressions to the effect that the jury have the right to disregard the court's instructions, and determine the law according to their own ideas, 38 but this view was repudiated had the power, but not the right, to bound to do so. State v. Tally, 23 disregard the charge of the judge." La. Ann. 677. The reviewing court cited the two 34 — State v. Desforges, 47 La. decisions first mentioned and re- Ann. 1167; State v. Callahan, 47 La. versed the decision, saying: "It, Ann. 444; State v. Brown, 41 La. doubtless, would be a 'safe rule for Ann. 410; State v. Tisdale, 41 La. the jury to take the law from the Ann. 341; State v. Cole, 38 La. Ann. judge as their guide, but they are 846; State v. Matthews, 38 La. Ann. not bound to do so." 795; State v. Vinson, 37 La. Ann. Relying on this decision, the judg- 792; State v. Ford, 37 La. Ann. 465; ment in the next case was reversed State v. Johnson, 30 La. Ann. 904. because the trial judge refused to 35 — State v. Vinson, 37 La. Ann. instruct that the jury were the 792. judges of both the law and the facts. 36 — State v. Tisdale, 41 La. Ann. State v. Saliba, 18 La. Ann. 35. 338; State v. Ford, 37 La. Ann. 444; Then follows a decision handed State v. Johnson, 30 La. Ann. 904. down in 1871 in which it was held 37 — State v. Ford, 37 La. Ann. 444. that the jury ought, aa a rule, to 38 — Com. v. Knapp, 10 Pick, follow the instructions, but are not (Mass.) 477, 20 Am. Dec. 534. 168 Instructions to Juries. [§76 in the first decision made after the enactment of the statute. In this case it was said that at common law the jury had no such right, and the court held that this right' was not and could not be conferred by the statute. 39 This holding has been adhered to in subsequent decisions, 40 and it has been held proper to instruct the jury that it is their duty to take the law from the court, and to conform their judgment and decision to its instructions, so far as they understood them, in applying the law to the facts to be found by them. 41 39 — Com. v. Anthes, 5 Gray 29; Com. v. Rock, 10 Gray (Mass.), (Mass.), 202. 4. 40 — Com. v. Marzynski, 149 Mass. 41 — Com. v. Anthes, 12 Gray 68; Com. v. Anthes, 12 Gray (Mass.), (Mass.), 29. CHAPTER VIII. Relation of Instkuctions to Pleadings and Evidence. § 77. Conformity of instructions to pleading and evidence — In general. § 78. Same — Illustrations. § 79. Limiting instructions to issues raised by pleadings. § 80. Same — Illustrations. § 81. Same — Criminal caBes. § 82. Necessity of basing instructions on evidence. § 83. Same— Incompetent evidence. § 84. Same — Withdrawn or excluded evidence. § 85. Same — Stating exceptions to general rules announced in other instruc- tions. § 86. Same — Sufficiency of evidence to support instructions. § 87. Same — Illustrations of rule. § 88. Same — Violation of rule as ground for reversal. § 89. Necessity of concrete application to facts of case. § 77. Conformity of instructions to pleading and evidence — In general. It is a general rule that the instructions must be predi- cated upon the pleadings and the evidence ma case. 1 1 — Florida. Gracy v. Atlantic Missouri. Eiley v. City of Inde- Coast Line E. Co., S3 Pla. 350. pendence, 258 Mo. 671, 7 N. C. C. A. Illinois. Healea v. Keenan, 244 191; Miller v. Kansas City Western 111. 484; East St. Louis Packing & E. Co., 180 Mo. App. 371. Provision Co. v. Hightower, 92 111. Nebraska. Swift & Co. v. Holou- 139 and see cases post, this note. bek, 60 Neb. 784. Indiana. Indianapolis Traction & Oklahoma. Kirk v. Territory, 10 Terminal Co. v. Hensley, — Ind. — , Okla. 46, 60 Pac. 797. 6 N. C. C. A. 750, 105 N. E. 474; South Dakota. Barker v. Coats, Plummer v. Indianapolis Union Ey. 34 S. D. 291. Co., — Ind. App. — , 104 N. E. 601. Texas. St. Louis Southwestern Iowa. Tullis v. H. S. Chase & Ey. Co. of Texas v. Evans, — Tex. Co., 162 Iowa 264; George v. Swaf- Civ. App. — , 158 S. W. 1179; Texas ford, 75 Iowa 491. & P. Ey. Co. v. Scruggs, 23 Tex. Kentucky. Bowlin v. Archer, 157 Civ. App. 712. Ky. 540. Utah. Smith v. Clark, 37 Utah (169) 170 Insteuctions to Jukies. [§77 When a charge is merely a statement of an abstract prin- ciple of law, which under, the pleadings and evidence can have no application to the case, it should not be given, and may be properly refused. 2 The reason for the rule is that instructions which are not 116, 26 L. B. A. (N. S.) 953, 1912 B 1366n, 106 Pac. 653. West Virginia. Wilhelm v. Park- ersburg, M. & I. E. Co., — W. Va. — , 82 S. E. 1089. It is an elementary rule of prac- tice that instructions should be con- fined to the issues presented by the pleadings and evidence. Bowlin v. Archer, 157 Ky. 540. Instructions must be based on the allegations in the declarations. Me- Cabe v. Atchison, T. & S. P. By. Co., 154 111. App. 380; Dignan v. Ander- son, 152 111. App. 522; Swanson v. Chicago City By. Co., 148 111. App. 135, aff'd 242 111. 388. Instructions must be applicable to the pleadings. Brenton v. New- lin, 161 111. App. 168. The theory of the instructions must follow that advanced by the pleadings. Allen v. Quercus Lumber Co., 182 Mo. App. 280. Instructions must be within the purview both of the pleadings and the evidence. Degonia v. St. Louis, I. M. & S. E. Co., 224 Mo. 564. A charge should not authorize a finding of liability on grounds not pleaded. St. Louis Southwestern Ey. Co. of Texas v. Evans, — Tex. Civ. App. — , 158 S. W. 1179. 2 — Alabama. Thomas v. State, 126 Ala. 4. California. People v. Hartman, 130 Cal. 487, 62 Pac. 823. Illinois. Herrin & S. E. Co. v. Nolte, 243 111. 594; Lyons v. Joseph T. Eyerson & Son, 242 111. 409, rev 'g 148 111. App. 284; Sibert v. Shoal Creek Coal Co., 181 111. App. 11; Hardin v. City of Moline, 179 111. App. 101; Schneider v. Chicago Bys. Co., 177 111. App. 334; Stack v. East St. Louis &, S. By. Co., 152 111. App. 613; German- American Bank of" Bloomington v. Owens, 143 111. App. 211; Chicago City By. Co. v. Bed- dick, 139 111. App. 160. Kansas. State v. Goff, 62 Kan. 104, 61 Pae. 683, 10 Kan. App. 286, 61 Pac. 680. Missouri. Fisher v. Central Lead Co., 156 Mo. 479; Lyons v. Carter, 84 Mo. APP- 483. Montana. Cuerth v. Arbogast, 48 Mont. 209, 136 Pac. 383; State v. Trosper, 41 Mont. 442, 109 Pac. 858. Nebraska. Booth v. Andrus, 91 Neb. 810. Oklahoma. Kennedy v. Goodman, 39 Okla. 470, 135 Pac. 936. Texas. McKinney v. Thedf ord, — Tex. Civ. App. — , 166 S. W. 443. Washington. Cook v. Danaher Lumber Co., 61 Wash. 118, 112 Pac. 245. Wisconsin. Brunette v. Town of Gagen, 106 Wis. 618. As a general proposition the court should not instruct in the abstract. Cook v. Danaher Lumber Co., 61 Wash. 118, 112 Pac. 245. The proper office of an instruction is to submit questions of fact and not mere abstract propositions of law. Seago v. Paul Jones Bealty Co., 185 Mo. App. 292. §77] Relation to Pleadings and Evidence. 171 applicable to the case, though, abstractly correct, do not help the jury, 3 and are apt to be misleading. 4 A proposition may be correct in a sense and yet be inap- plicable to the issues and misleading to the jury, 5 and such instructions should be refused unless based on the facts of the case. 6 3— Nesbit v. Webb, 115 Va. 362. Abstract propositions should not be. given for they afford the jury no aid. Edwards v. Lee, 147 Mo. App. 38. 4 — Florida. Florala Saw Mill Co. v. Smith, 55 Fla. 447. Illinois. Connolly v. People 's Gas, Light & Coke Co., 260 111. 162; Si- bert v. Shoal Creek Coal Co., 181 111. App. 11. . Missouri. Seago v. Paul Jones Eealty Co., 185 Mo. App. 292; Grout v. Central Elec. R. Co., 151 Mo. App. 330. Ohio. Holmes v. Ashtabula Rapid Transit Co., 10 Ohio Cir. Dee. 638. Texas. "Abstract propositions do not usually make the issue clear to the minds of the jurors." Britain v. State, 52 Tex. Cr. App. 169. Wisconsin. Collins v. City of Janesville, 107 Wis. 436. 5 — Harmon v. Pohle, 55 Ind. App. 439. It is error to instruct on a sub- ject not at issue, though in the abstract the rule of law announced is sound. Oberlin v. Oregon-Wash- ington R. & Nav. Co., 71 Ore. 177, 142 Pac, 554. 6 — An instruction, though correct in law, should be refused unless there is a basis for it in the facts of the case, and the evidence or the pleadings make the instruction per- tinent. Alabama. Pearson v. Adams, 129 Ala. 157; Thomas v. State, 126 Ala. 4. Georgia. City Council of Augusta v. Owens, 111 Ga. 464. Illinois. Hide '& Leather Nat. Bank v. Alexander, 184 111. 416, aff 'g 82 111. App. 484; Louisville, N. A. & C. Ey. Co. v. Shires, 108 111. 617. Iowa. Sample v. Rand, 112 Iowa 616; Borland v. Chicago, M. & St. P. Ry. Co., 78 Iowa 94. Kentucky. Louisville & N. R. Co. v. Mattingly, 22 Ky. L. Rep. 489; The Blue Wing v. Buckner, 12 B. Mon. 246. Massachusetts. Phillips v. Cornell, 133 Mass. 546. Michigan. Henry C. Hart Mfg. Co. v. Mann's Boudoir Car Co., 65 Mich. 564. Missouri. De Donato v. Morrison, 160 Mo. 581; Bender v. Dungan, 99 Mo. 126; Gibson v. German- Ameri- can Town Mut. Ins. Co., 85 Mo. App. 41; Kaw Brick Co. v. Gogsett, 82 Mo. App. 546. Nevada. Schafer v. Gilmer, 13 Nev. 330. North Carolina. Porter v. White, 128 N. C. 42. Ohio. Stewart v. Southard, 17 Ohio, 402, 49 Am. Dec. 463. South Carolina. Long v. Hunter, 58 S. C. 152. Texas. Missouri Pac. Ry. Co. v. Mitchell, 75 Tex. 77; Abernathy v. Southern Rock Island Plow Co. (Tex. Civ. App.), 62 S. W. 786; Houston 172 Instkuctions to Juries. [§77 If ~ the rule stated is not applicable it ought not to be given; and if it is applicable it ought to be made so by the court that the jurors will understand its meaning. 7 The giving of instructions not warranted by the pleadings and evidence is erroneous, 8 and will warrant reversal if the jury were misled. 9 & T. C. B. Co. v. George (Tex. Civ. App.), 60 S. W. 313; City of Dallas v. Beeman, 23 Tex. Civ. App. 315. 7 — State v. Trosper 41 Mont. 442, 109 Pac. 858. A jury of laymen ought not to be charged with making the applica- tion of an abstract proposition themselves. State v. Trosper, 41 Mont. 442, 109 Pac. 858. 8 — California. People v. Tapia, 131 Cal. 647, 63 Pac. 1001; Sargent v. Linden Min. Co., 55 Cal. 204. Colorado. Gibbs v. Wall, 10 Colo. 153, 14 Pac. 216; Matheson v. Kuhn, 15 Colo. App. 477, 63 Pac. 125. Georgia. City Council of Augusta v. Owens, 111 Ga. 464. Illinois. Chicago & A. E. Co. v. Bragonier, 119 111. 51; Chicago & A. E. Co. v. Eobinson, 106 111. 142; Wabash E. Co. v. Stewart, 87 111. App. 446. Indiana. Bapp v.'Kester, 125 Ind. 79. Iowa. Scott v. Chicago Great Western Ey. Co., 113 Iowa 381; State v. Kissock, 111 Iowa ,690; Van Bergen v. Eulberg, 111 Iowa 139. Kansas. First Nat. Bank of Arkansas City v. Skinner, 10 Kan. App. 517, 62 Pac. 705. Minnesota. Wilcox v. Chicago, M. & St. P. E. Co., 24 Minn. 269. Missouri. Haynes v. Town of Trenton, 108 Mo. 123; Pryor v. Metropolitan St. Ey. Co., 85 Mo. App. 367. North Carolina. Johnson v. Bell, 74 N. C. 355. Texas. Pullman Co. v. Hoyle, 52 Tex. Civ. App. 534; Stacy v. Green- wade, 26 Tex. Civ. App. 277; Duck v. St. Louis & S. W. Ey. Co. (Tex. Civ. App.), 63 S. W. 891; Western Union Tel. Co. v. Burgess (Tex. Civ. App.), 60 S. W. 1023; Dallas Eapid Transit Ey. Co. v. Campbell (Tex. Civ. App), 26 S. W. 884; Ballew v. State (Tex. Cr. App.), 34 S. W. 616. West Virginia. Britton v. South Penn. Oil Co., 73 W. Va. 792. Wisconsin. McCann v. Ullman, 109 Wis. 574. "It is prejudicial and reversible error to give an instruction founded upon a ground of liability not al- leged in the declaration." Britton v. South Penn Oil Co., 73 W. Va. 792. 9 — Where an instruction is outside of the case made by the pleadings and evidence, or submits issues not raised thereby, this will be a ground for reversal unless it is clear that the jury were not misled; Missouri. Edwarda v. St. Louis, K. & S. Ey. Co., 79 Mo. App. 257. South Carolina. Mason v. South- ern Ey. Co., 58 S. C. 70, 53 L. E. A. 913, 79 Am. St. Eep. 826. Texas. Love v. Wyatt,*19 Tex. 312; People's Building, Loan & Sav- ings Ass'n v. Elliott (Tex. Civ. App.), 33 S. W/545. Virginia. Eeed v. Com., 98 Va. 817. The giving of an instruction not § 78] Belation to Pleadings and Evidence. 173 "When instructions not authorized by the pleadings are given it is presumed that the complaining party was in- jured, because it must be assumed that he relied upon the fact that the issues would be confined to the statements of the pleadings, ' ' 10 and the harmful effect of such an errone- ous instruction cannot be obviated merely by a correct in- struction upon the same subject, but the attention of the jury must be specifically called to the previous error, and it must be expressly withdrawn. 11 Whether an instruction is to be considered as abstract is to be determined from the evidence as well as the instruc- tions as a whole. 12 § 78. Same — Illustrations. The trial judge is required to charge the jury to the extent of stating the evidence and the law arising thereon, and it is error to say, in an action, involving a controversy over the value of a hog: "Take the case, gentlemen, and settle it as between man and man. ' ' ls Where the plaintiff relies in his pleading's on an express warranty, the court should limit recovery to a breach of such warranty; and it is error to instruct as to an implied warranty, as the tendency is to confuse the jury. 14 Where no issue is raised by the pleadings and evidence as to the rental value of a sawmill, it is proper to refuse an referring to the negligence charged question as to whether the prayer is not reversible .error where the should be granted depends, not upon jury are not misled as to what negli- the state of the pleadings, but upon genee is charged. Cleveland, C, C. the evidence to which alone they & St. L. E. Co. v. Surrells, 115 111. refer. Birney v. New York & W. App. 615. Printing Tele. Co., 18 Md. 341, 81 10 — Western & A. B. Co. v. Sellers, Am. Dec. 607n. — Ga. App. — , 83 S. E. 445. 13— Blake v. Smith, 163 N". C. 11— Western & A. E. Co. v.Sellers, 274. — Ga. App. — , 83 S. E. 445. 14— Burgess v. Felix, 42 Okla. 193, 12 — Cook v. Danaher Lumber Co., 140 Pac. 1180. See also, Gibbs v. 61 Wash. 118, 112 Pac. 245. Wall, 10 Colo. 153, 14 Pac. 216; Ken- Where a prayer or prfyers neither nedy v. Goodman, 39 Okla. 470, 135 point nor refer to the pleadings, the Pac. 936. 174 Instructions to Juries. [§78 instruction that ' such rental value may be considered in determining the rental value of land. 15 An instruction as to actual damages for suing out an attachment is properly refused < where no actual damages for the levy were claimed. 10 In negligence cases, it is improper to give instructions involving the doctrine of the last clear chance, when not applicable to the facts in the case, 17 and the same rule applies to the defense of contributory negligence 18 or acci- dent. 19 It is also error to give an instruction submitting the issue whether plaintiff was a passenger, where this was not claimed by the pleadings or shown by the evidence. 20 An instruction to find for the plaintiff "if they believe from the evidence that the defendant is guilty of the acts of negligence complained of in the declaration" is mis- leading where there is no evidence to support the first count of the declaration. 21 And in an action for injuries to a passenger, an instruc- tion as to negligence in "increasing the speed" of the car,, 15— Fairchild v. Wilson, — Tex. — Tex. Civ. App. — , 158 S. W. 1156. Civ. App. — , 168 S. W. 409. Where contributory negligence is 16 — Bennett v. Foster, — Tex. Civ. neither pleaded nor proved, error App. — , 161 S. W. 1078. , cannot be predicated on the omis- 17 — A requested instruction in- sion from the instructions of refer- volving the doctrine of the last ence to it. Graham v. Sly, 177 Mo. clear chance is properly refused App. 348. ' when not applicable to the facts in 19 — Error cannot be predicated on a case'. • Snow v. Indianapolis & E. the refusal of an instruction to the R. Co., 47 Ind. App. 189. effect that if an injury was caused The court does not err in failing by inevitable accident, plaintiff to instruct on the doctrine of last could not recover, where no such clear chance, when that doctrine is situation was disclosed by the plead- not presented by the issues or evi- ings or evidence. Dunn v. Orchard dence. Hummer v. Indianapolis Land Co., 68 Ore. 97, 136 Pac. 872. Union Ry. Co., — Ind. App. — , 104 20— Missouri, K. & T. Ry. Co. v. NT. E. 601. Bodgers (Tex. Civ. App.), 35 S. W. 18 — Instructions on contributory 412. negligence, correct in form, may be 21 — J. J. Newman Lumber Co. v. properly refused where such defense Dantzler, — Miss. — , 64 So. 931. is not pleaded. Bartley v. Marino, § 78] Relation to Pleadings and Evidence. 175 implying that the car was in motion when plaintiff alighted, was properly refused, where the pleadings and evidence claimed that the car "started with a jerk." 22 In an action for injuries. sustained in a collision with a train, where excessive speed of, the train was not an issue in the case, an instruction on such subject was properly refused. 23 An instruction that, ' ' if you further find from all the evi- dence that said car, placed and left where you may find from the evidence it was placed and left, was an object apt to frighten horses of ordinary gentleness, * * , * then you would be warranted in finding that defendant was guilty of negligence, ' ' is erroneous when it was not alleged that the car, placed as it was, was apt to frighten horses of ordinary gentleness. 24 The practice of submitting negligence of a defendant in general terms where specific acts of negligence are relied upon in the petition has been held reversible error, 25 but it has also been held not error to submit the specific issues involved and follow it with the abstract law covering the issue. 26 In an action for damages for the killing of a horse by a train at a crossing, where the pleadings involve no issue of wilfulness, the court is not required to instruct as to such issue. 27 In an action against a railroad company to recover for injuries received at a crossing, the court may and should refuse an instruction that the absence of a flagman from the crossing does not constitute wanton or wilful miscon- 22 — Birmingham Railway, Light injuries, where the court defines the & Power Co. v. Moore, 163 Ala. 43. issues and submits the defense of a 23 — Eaton v. Southern Pac. Co., choice between places of work, it is 22 Cal. App. 461, 134 Pac. 801. not error to follow it with the ab- 24 — Fisk v. Chicago, M. & St. P. stract law covering the issue as Ey. Co., 74 Iowa < 424. defined. Cook v. Danaher Lumber 25— Feldewerth v. Wabash E. Co., Co., 61 Wash. 118, 112 Pac. 245. 181 Mo. App. 630. 27— Southern E. Co. v. Lawler, 26 — In an action by a servant for 11 Ala. App. 241. 176 Instructions to Juries. [§78 duct, where it is not claimed that defendant's conduct is wanton or wilful. 28 An instruction based on a cause of action given by the Federal Twenty-eight Hour Law (Act June 29, 1906, ch. 3594, 34 Stat. 607) is erroneous where the petition is a mere common-law action for negligent delay in shipping cattle. 29 , Instructions confining the right of recovery for injury to the provisions of the Federal Employers' Liability Act are properly refused where the facts do not bring the case within such act, and the cause is governed by the state act. 30 An instruction which permits the jury to give a greater sum as damages than is asked by the pleadings is improper. 81 An instruction that in estimating damages the jury can consider whether the plaintiff's injuries were permanent is erroneous where there is no allegation in the petition that the injuries were permanent or no evidence showing such fact. 32 In an action for damages caused by the bursting of a water pipe, where there was nothing in the pleadings or evidence indicating that special damages were claimed because the accident occurred on Christmas eve, the refusal of instructions thereto was not error. 33 Where no claim was made in a complaint and no testi- mony was offered as to damages by reason of physician's fees or hospital expenses, an instruction disallowing such items was' properly refused. 34 An instruction authorizing a finding of damages for 28 — Louisville, N. A. & C. Ey. Co. 32 — Salmon v. Chicago & A. R. Co., v. Shires, 108 111. 617. 181 Mo. App. 414. 29 — McFall v. Chicago, B. & Q. 33 — Birmingham Water Works Co. R. Co., 181 Mo. App. 142. v. Copeland, 161 Ala. 310. 30 — Vandalia E. Co. v. Stringer, 34— Scheurmann v. Mathison, 67 — Ind. — , 106 N. E. 865. Ore. 419, 136 Pac. 330. 31 — Weller v. Missouri Lumber & , Mining Co., 176 Mo. App. 243. § 79] Belation to Pleadings and Evidence. 177 washing or eroding of a plaintiff's land should not be given where there is no allegation of such washing or eroding. 35 In a criminal case, a requested charge that the policy of the law deems it better that many guilty persons shall escape rather than one innocent person should be convicted and punished is properly refused as a mere abstract prin- ciple of law. 36 On a trial for arson, an instruction which assumed that the defendant and another were jointly informed against, is properly refused where the information charged the direct offense against defendant alone. 37 A charge requiring the state to prove, in a homicide case, that the deceased did not know that the defendant had a pistol when the fight commenced is misleading when it hypothesizes a fact of which there was no evidence and raises a question not at issue. 38 § 79. Limiting instructions to issues raised by pleadings. It is a general rule that the instructions should not broaden the issues made by the pleadings or present issues not raised thereby, 39 and if a charge is requested which is 35 — Smith v. Sanitary Dist. of Florida. Hooker v. Johnson, 10 Chicago, 260 111. 454. Fla. 198. 36— People v. Darr, 179 111. App. 130. Georgia. Hambright v. Stover, 31 37— Goldberger v. People, 45 Colo. Ga. 300. 327, 101 Pac. 407. Illinois. Mosher v. Rogers, 117 111. 38— Hooten.v. State, 9 Ala. App. 9. 446; Johnson v. Johnson, 114 111. 39— Price v. St. Louis, I. M. & S. 611 > 55 Am - Ee P- 883 5 Shackelton v. E. Co., 185 Mo. App. 432. Lawrence, 65 111. 175; Leach v. Instructions must be confined N^"» 55 IU - 27 3- See also, cases strictly to the issues made by the ) no e ' * oa ' Indiana. Inland Steel Co. v. pleadings. m ^ L _ v _ ^^ California. Williams v. Southern ^ ^ ^^ ^ w _ Pac. E. Co., 110 Cal. 457, 42 Pac. 974. R Co y _ ziebarth; g ^ App ^ Colorado. Montgomery v. Colo- Iowa Allderaoll v . Eoberts, 112 rado Springs & Interurban E. Co., Iowa 749. 50 Colo. 210, 114 Pac. 659; Jackson Kansas. St. Louis & S. P. Ey. Co. v. Ackroyd, 15 Colo. 583, 26 Pac. v . Blinn, 10 Kan. App. 468, 62 Pac. 132. - 427. Blashfield Vol. 1—12 178 Instructions to Juries. [§79 not relevant to an issue in the case, it should be refused, 40 and it is immaterial that it states a correct principle of law. 41 The case made by the pleadings alone furnishes a basis Michigan. Denman v. Johnston, 85 Mich. 387. Minnesota. Morrow v. St. Paul City Ey. Co., 65 Minn. 382. Mississippi. Brown v. Walker (Miss.), 11 So. 724. Missouri. Melvin v. St. Louis & S. F. Ey. Co., 89 Mo. 106; Wade v. Hardy, 75 Mo. 394; Edwards v. St. Louis, K. & S. Ey. Co., 79 Mo. App. 257; Fairgrieve v. City of Moberly, 29 Mo. App. 142. See also, cases cited in this note, post. Nebraska. Webster v. O'Shee, 13 Neb. 428. North Carolina. Peebles v. Gra- ham, 128 N. C. 218. Oregon. Pearson v. Dryden, 28 Ore. 350, 43 Pac. 166. Texas. Equitable Life Ins. Co. v. Hazlewood, 75 Tex. 338, 7 L. E. A. 217n, 16 Am. St. Eep. 893n; Eotan Grocery Co. v. Martin (Tex. Civ. App.), 57 S. W. 706; Stringer v. Singleterry (Tex. Civ. App.), 23 S. W. 1117; Waters-Pierce Oil Co. v. Cook, 6 Tex. Civ. App. 573. Utah. Holt v. Pearson, 12 Utah 63, 41 Pac. 560. Wisconsin. Austin v. Moe, 68 Wis. 458. United States. Northern Pac. Ey. Co. v. Babcoek, 154 U. S. 190, 38 L. Ed. 958. The instructions must be neither broader nor more narrow than the pleadings. Waddingham v. Hulett, 92 Mo. 528; Crews v. Lackland, 67 Mo. 621; Iron Mountain Bank v. Murdock, 62 Mo. 70; George v. Wa- bash Western Ey. Co., 40 Mo. App. 434. The jury should neither be re- quired nor allowed to pass on mat- ters not in actual controversy in the case. Montgomery v. Colorado Springs & Interurban E. Co., 50 Colo. 210, 114 Pac. 659. Instructions must, be limited to the averments of the declaration. Pres- ley v. Kinlock-Bloomington Tel. Co., 158 111. App. 220; Show v. Alton, G. & St. L. Traction Co., 152 111. App. 552; American Home Circle v. Schneider, 134 111. App. 600. Instructiens must be pertinent to the issues. West Chicago St. E. Co. v. McCafferty, 220 111. 476; Stickel v. Eiverview Sharpshooters Park Co., 159 111. App. 110, aff'd 250 111. 452; Boden v. Kewanee Coal & Mining Co., 157 111. App. 484; Dudley v. Peoria Ey. Co., 153 111. App. 619; Houtz v. People, 123 111. App. 445. Instructions must be relevant to some issuable fact in controversy. Inland Steel Co. v. Ilko, 181 Ind. 72; Detrich v. Metropolitan St. E. Co., 143 Mo. App. 176. 40— Blackman v. Webber, 161 111. App. 53; Nevada Co. v. Farnsworth, 42 C. C. A. 504, 102 Fed. 573. 41 — Instructions not pertinent to the issues are properly refused though stating a correct principle of law. Postal Tel. Cable Co. v. Likes, 225 111* 249, aff'g 124 111. App. 459; Chicago Union Traction Co. v. O'Brien, 219 111. 303, rev'g 117 111. App. 183. 79] Relation to Pleadings and Evidence. 179 for recovery, and the issues cannot be changed by the instructions, 42 or by the evidence. 43 It is error to submit issues raised by pleas to which demurrers have been sustained in the absence of an amend- ment, 44 and a requested instruction on the theory of confes- sion arid avoidance is properly refused where the only answer is a general denial. 45 The general rule, however, has its qualifications. The jury are not supposed to know and in practice do not in fact know the issues raised by the pleadings, except in the most general way when viewed from a legal standpoint. To them all the evidence introduced, unless excluded bf the court, is to be considered as having a bearing on the case. It is therefore proper to limit, explain and declare the legal effect of particular evidence by the instructions. 46 42 — Christian v. Connecticut Mut. Life Ins. Co., 143 Mo. 460; Glass v. Gelvin, 80, Mo. 297; Iron Moun- tain Bank v. Murdock, 62 Mo. 73; Wright v. Fonda, 44 Mo. App. 634; Frederick v. Kinzer, 17 Neb. 366. 43 — Instructions should not be broader than the issues made by the pleadings, however wide the scope of the evidence may be. Scrivner v. Missouri Pae. B. Co., 260 Mo. 421, 6 N. C. C. A. 649. ~ There can be no evidence on which to base instructions) if that evidence overthrows the pleadings of the party who introduces it. Capital Bank v. Armstrong, 62 Mo. 65. The issues to be raised in a cause must be raised by the pleading^, and cannot be enlarged either by the evi- dence or the instructions, nor, in- deed, by both combined. Christian v. Connecticut Mut. Life Ins. Co., 143 Mo. 460. 44 — Georgia. See Heath v. Smith, 142 Ga. 106. Iowa. Whitsett v. Chicago, B. I. & P. Ey. Co., 67 Iowa 150; Sioux City & P. E. Co. v. Walker, 49 Iowa 273. Michigan. Pettibone v. Smith, 37 Mich. 579; Comstock v. Norton, 36 Mich. 278. Missouri. Kenney v. Hannibal & St. J. E. Co., 70 Mo. 252. Nebraska. Dunbier v. Day, 12 Neb. 596, 41 Am. Eep. 772n. New Jersey. Sweet v. Excelsior Elec. Co. (N. J. L.), 31 Atl. 721. Texas. Texas & P. Ey. Co. v. French, 86 Tex. 96; Love v. Wyatt, 19 Tex. 312; Trout v. McQueen (Tex. Civ. App.), 62 S. W. 928; Galveston, H. & S. A. Ey. Co. v. Herring (Tex. Civ. App.), 36 S. W. 129; Hartford Fire Ins. Co. v. Josey, 6 Tex. Civ. App. 290. A failure to instruct on issues not involved in a case is not error. Heath v. Smith, 142 Ga. 106. 45 — Omohundro v. Emerson, 80 Mo. App. 313. 46— Price v. St. Louis, I. M. & S. E. Co., 185 Mo. App. 432. 180 Instructions to Jxjbies. [§79 In general it is better practice to follow as nearly as possible the charges in the petition, 47 but when it is clear from the petition, evidence and instructions that the issue was in fact not broadened, reversible error is not made out. 48 Where, in the progress of the trial, all the issues raised by the pleadings have been eliminated save one, it is not error for the court to withdraw from the consideration of the jury all questions presented by the pleadings save . that one. 49 It is the duty of the court to charge the jury in accord- ance with the interpretation of the pleadings acted upon by the parties, 50 and where the precise issues raised by the pleadings are disregarded by both parties, and a defense" raised not covered by the pleadings, it is error, for the court to instruct the jury that they cannot consider such de- fense. 51 The reviewing court cannot consider an objection" to instructions on the ground that they relate to an issue not in the case, if the party objecting has asked instructions on that issue. 52 An instruction to disregard an element of the case made by the pleadings, but which the evidence wholly fails to establish, should be given if requested ; B3 and ' ' where there are defective counts in the declaration, it is error in the court to refuse to instruct the jury to dis- regard them. " 54 A variance between the pleadings and 47 — Quinley v. Springfield Trae- cause is tried on the theory of a tion Co., 180 Mo. App. 287. contract as set up in the answer, it 48 — Quinley v. Springfield Trac- is erroneous to instruct the jury on tion Co., 180 Mo. App. 287. the theory of a contract as alleged 49 — Scholtz v. Northwestern Mut. in the complaint. Fox v. Utter, 6 Life Ins. Co., 40 C. C. A. 556, 100 Wash. 299, 33 Pac. 354. Fed. 573. 51— Brusie v. Peck Bros. & Co., 50— Blum v. Whitworth, 66 Tex. 135 N. Y. 622. 350. 52 — Hahn v. Miller, 60 Iowa 96. Where the plaintiff seeks to re- 53 — Chicago Bridge & Iron Co. v. cover on a contract which the an- Hayes, 91 111. App. 269; Lange v. swer denies, and the answer sets up Wiegand, 125 Mich. 647. a different contract, and alleges non- 54 — An instruction that the plain- compliance by plaintiff, and the tiff must prove each and every ma- § 80] Relation to Pleadings and Evidence. 181 evidence may be waived so as to authorize an instruction broader than the issues waived by the pleadings ; 55 but this doctrine cannot be extended to cases where the evidence is so widely variant from the pleadings that the facts thereby established constitute a cause of action or defense different from the one set up in the pleadings, for even the most liberal statute relating to amendments would not permit a pleading to be so amended as to state a cause of action or defense entirely different from the one alleged in the origi- nal pleading. 56 § 80. Same — Illustrations. An instruction in general terms that, if a contract was procured by fraud, the jury should find a general verdict for one of the parties, invites the jury to explore a field un- bounded by the pleadings, and permits' them, unguided by the principles by which fraud is determined, to find its ex- istence and pertinency to the case upon mere conjecture, and such instruction is erroneous. 57 Where the gravamen of a cause of action is negligence in allowing an engine unnecessarily to emit steam, producing a loud and unusual noise, instructions enlarging the cause of action by including negligence in failing to discontinue the noise after the engineer saw that the horses were terri- fied, are erroneous. 68 Where the real issue, in an action for injuries, was whether a master failed to exercise ordinary care in safe- keeping" dynamite, an instruction as to the duty of defend- ant to keep the premises in safe condition is erroneous. 59 terial allegation in the declaration, • man v. Keith, 18 Ohio St. 134; or. some count thereof, before he is Comegys v. American Lumber Co., entitled to recover, is erroneous 8 Wash. 661, 36 Pac. 1087. where the declaration contains de- 57 — Wells v. Houston, 23 Tex. Civ. fective counts. Chicago & A. E. Co. App. 629. v. Eselin, 86 111. App. 94. 58 — Maynard v. Chicago, B. & Q. 55 — Boyce v. California Stage Co., E. Co., 155 Mo. App. 352. 25 Cal. 460. 59— Cincinnati, N. O. & T. P. E. 56— See Savannah, F. & W. Ey. Co. v. Padgett, 158 Ky. 301. Co. v. Tiedeman, 39 Pla. 196; Whit- 182 Insteuctions to Juries. [§ 80 In an action for the death of a person killed while board- ing a street car, an instruction as to whether the car started "suddenly and with great force" is not objectionable though the petition charged that the car started "with a jerk." 60 It has also been held that failure to limit recovery to the negligence charged is not error where no other negligence is proved and other instructions contain the limitation. 61 § 81. Same — Criminal cases. In criminal cases, instructions should be confined to the offense charged, and which the evidence tends to show was committed. 62 It is error and ground for reversal to give charges which justify the jury in convicting the defendant of an offense other than that charged in the indictment, or which enables the jury to find the defendant guilty of the offense charged on a ground not set forth in the indictment. 63 Where an indictment charges a defendant with unlaw- fully disposing of certain personal property, subject to a valid subsisting deed -of trust, a charge authorizing con- viction for a sale occurring about ten months after the return of the indictment is illegal and unauthorized. 64 And where a defendant is being tried for' murder in the second degree, it is improper to charge the jury on the law relating to murder in the first degree. 65 60 — Johnson v. Metropolitan St. "The question of whether it is E. Co., 177 Mo. App. 298. proper to submit to the jury the 61 — Springfield Consol. E. Co. v. ' question of the defendant 's guilt of Puntenney, 101 111. App. 95, aff'd any particular grade of offense in- 200 111. 9. eluded in the indictment must be 62 — People v. Jones, 263 111. 564. answered by considering whether 63 — People v. Mulkey, 65 Cal. there is evidence which would justi- 501, 4 Pac. 507; Coney v. State, 43 fy a conviction for that offense." Tex. 414; Bacchus v. State, 18 Tex. Allison v. State, 74 Ark. 444. App. 15; Mason v. State, 7 Tex. App. 64 — Fox v. State, 61 Tex. Cr. App. 623. See also, generally," Pena v. 341. State (Tex. Cr. App.), 63 S. W. 311, 65— State v. Walton, 74 Mo. 270. wherein an instruction was held not to depart from the indictment. 82] Relation to Pleadings and Evidence. 183 § 82. Necessity of basing instructions on evidence. It is elementary that all instructions to the jury should be applicable to and limited to the evidence adduced in the cause; 66 and it is error to give instructions based on a state of facts which there is no evidence tending to prove, 67 or 66— Metallic Gold Min. ,Co. v. Watson, 51 Colo. 278, Ann. Cas. 1913 A 1276n, 117 Pac. 609; Schlau- der v. Chicago & S. Traction Co., 253 111. 154; People v. Rischo, 262 111. 596; Lyons v. Joseph T. Ryerson & Son, 242 111. 409. Instructions must be applicable to the facts shown. People v. Whit- low, 24 Cal. App. 1, 139 Pac. 826. Charges must be predicated on facts in proof and must be appli- cable to such facts. Davis v. State, 66 Fla. 349. Charges should be confined to the evidence. Florida East Coast R. Co. v. Carter, 67 Fla. 335. ■ Instructions must be predicated on the evidence admitted. Mithen v. Jeffery, 259 111. 372; Illinois Match Co. v. Chicago, R. I. & P. R. Co., 250 HI. 396; Greenburg v. S. D. Childs & Co., 242 111. 110; Boldenwick v. Cahill, 187 111. 2J8, aff'g 86 111. App. 561; Pegram v. Mutual Protective League, 159 111. App. 214; Colekin v. Bamborough, 159 111. App. 130; Boyd v. Carter- ville Coal Co., 158 111. App. 490; Linberg v. City of Rock Island, 157 111. App. 527; Renken v. Chicago, B. & Q. R. Co., 156 111. App. 65; Cessna v. United States Life Endowment Co., 152 111. App. 653; Brennen v. Chicago & C. Coal Co., 147 111. App. 263, aff'd 241 111. 610; Wiemer v. Temple, 145 111. App. 498; Bonk Bros. Coal & Coke Co. v. Stoeter, 133 111. App. 199, rev'd 229 111. 134. The giving of instructions not based on the evidence is error. Stevens v. Chicago Eeather Co., 178 111. App. 455; Jones v. Vickers, 173 111. App. 481; Lepman v. Employers Liability Assur. Corporation, Ltd., of London, 170 .111. App. 379. It is the duty of the court to in- struct the jury as to the law appli- cable to the facts when evidence is received without objection. Mis- souri River Transp. Co, v. Minneap- olis & St. L. R. Co., 34 S. D. 1. Where there is no evidence upon an issue raised by the pleadings, that issue should not be submitted to the jury. Bowlin v. Archer, 157 Ky._ 540. 67 — Alabama. Thomas v. State, 126 Ala. 4. Arkansas. Gaines v. Bard, 57 Ark. 615, 38 Am. St. Rep. 266. California. People v. Kelly, 133 Cal. 1, 64 Pac. 1091. Colorado. Johnson v. Jones, 16 Colo. 138, 26 Pac. 584; Pisk v. Gree- ley Electric Light Co., 3 Colo. App. 319, 33 Pac. 70. Connecticut. Lewis v. Phoenix Mut. Life Ins. Co., 44 Conn. 88. Florida. Savannah, F. & W. Ry. Co. v. Tiedeman, 39 Fla. 196. Georgia. Maxwell v. Pritchard, 113 Ga. 598; City of Americus v. Ansley, 14 Ga. App. 707. Idaho. Gwin v. Gwin, 5 Idaho, 271, 48 Pac. 295. Illinois. Farlow v. Town of Camp Point, 186 111. 256. Indiana. Indianapolis Traction & Terminal Co. v. Hensley, — Ind. — , 184 Instructions to Juries. [§82 which the undisputed evidence in the case shows does not 105 N. E. 474, 6 N. C. C. A. 750; Shilling v. Braniff, 25 Ind. App. 676. Iowa. Anderson v. Roberts, 112 Iowa 749; State v. Kissock, 111 Iowa 690; State v. Swallum, 111 Iowa 37. Michigan. Slingerland v. Keyser, 127 Mich. 7; Fletcher v. Post, 104 Mich. 424. Minnesota. Mittwer v. Stremel, 69 Minn. 19. Mississippi. Ellerbe v. State, 79 Miss. 10; Ivy v. Walker, 58 Miss. 253. Missouri. Ephland v. Missouri Pac. By. Co., 137 Mo. 187, 35 L. R. A. 107, 59 Am. St. Eep. 498; Och v. Missouri, K. & T. Ey. Co., 130 Mo. 27, 36 L. R. A. 442; Small v. Polar Wave Ice & Fuel Co., 179 Mo. App. 456. Montana. Huntoon v. Lloyd, 7 Mont. 365, 16 Pac. 573. Nebraska. Zancanella v. Omaha & C. B. St. R. Co., 93 Neb. 774, 6 N. C. C. A. 330. North Carolina. State v. Pearce, 46 N. C. 251; Pollard v. Teel, 25 N. C. 470; Jones v. Eason, 24 N. C. 331. Ohio. Morgan v. State, 48 Ohio St. 371; Donald v. State, 21 Ohio Cir. Ct. 124, 11 Ohio Cir. Dec. 483. Oklahoma. Levy Bros. v. West- ern U. Tel. Co., 39 Okla. 416, 135 Pac. 423; Kirk v. Territory, 10 Okla. 46, 60 Pac. 797. Oregon. Emison v. Owyhee Ditch Co., 37 Ore. 577, 62 Pac. 13; Breon v. Henkle, 14 Ore. 494, 13 Pac. 289. Pennsylvania. Hasson v. Klee, 168 Pa. 510. South Dakota. Bockoven v. Board Sup'rs Lincoln Tp., 13 S. D. 317. Tennessee. Graham v. Fidelity Mut. Life Ass'n, 98 Tenn. 48. Texas. Dorsey Printing Co. v. Gainesville Cotton Seed Oil Mill & Gin -Co., 25 Tex. Civ. App. 456; Thompson Sav. Bank v. Gregory (Tex: Civ. App.), 59 S. W. 622. Utah. Chapman v. Southern Pac. Co., 12* Utah 30, 41 Pac. 551. Vermont. Good v. Knox, 64 Vt. 97. Virginia. Baltimore & O. R. Co. v. Few's Ex'rs, 94 Va. 82; Bartley v. McKinney, 28 Grat. 750. Washington. Miller v. Territory, 3 Wash. T. 554, 19 Pac. 50. . West Virginia. Gay v. Gay, — W. Va. — , 83 S. E. 75; Oliver v. Qhio River R.'co., 42 W. Va. 703; Storrs v. Feick, 24 W. Va. 606; Lawson v. Dalton, 18 W. Va. 766. Wisconsin. Eggett v. Allen, 106 Wis. 633. United States. Keyser v. Hitz, 133 U. S. 138, 33 L. Ed. 531; North- ern Pac. R. Co. v. Paine, 119 U. S. 561, 30 L. Ed. 513; United States v. Breitling, 20 How. 252, 15 L. Ed. 900; Michigan Ins. Bank v. Eldred, 9 Wall. 544, 19 L. Ed. 763; Chicago City v. Bobbins, 2 Black 418, 17 L. Ed. 298. "It is error to submit as a predi- cate of liability something which there is no evidence to support or which in no way gave rise to or contributed to produce the injury or loss for which a recovery is sought. ' ' Small v.' Polar Wave Ice & Fuel Co., 179 Mo. App. 456. "The only result of such an in- struction is to create a false issue for the jury to consider and thereby prejudice plaintiff's rights." Levy §82] Relation to Pleadings and Evidence. 185 exist, 08 even though such instructions contain correct state- ments of law. 09 Eequested instructions affected with this vice may and should be refused. 70 Bros. v. Western U. Tel. Co., 39 Okla. 416, 135 Pac. 423. 68 — City Council of Augusta v. Owens, 111 Ga. 464; Fisher v. Cen- tral Lead Co., 156 Mo. 479; Wells v. Houston, 23 Tex. Civ. App. 629; Garcia v. State (Tex. Cr. App.), 61 S. W. 122. 69 — Alabama. Pearson v. Adams (Ala.), 29 So. 977. California. People v. Hartman, 130 Cal. 487, 62 Pac. 823. Colorado. Almond v. People, 55 Colo. 425, 135 Pac. 783. Iowa. WMtsett v. Chicago, B. I. & P. Ey. Co., 67 Iowa 150; Bank of Monroe v. Anderson Bros. Min. & By. Co., 65 Iowa- 692; Farr y. Fuller, 8 Iowa 347; Moffitt v. 'Cressler, 8 Iowa 122. Kansas. State v. Goff, 62 Kan. 104, 61 Pac. 683; City of Kinsley v. Morse, 40 Kan. 577, 20 Pac. 217; State v. Whitaker, 35 Kan. 731, 12 Pac. 106; State v. Goff, 10 Kan. App. 286, 61 Pac. 680. Kentucky. Sutton v. Menser, 6 B. Mon. 434. Mississippi. Parker v. State, 55 Miss. 414. Missouri. , Lyons v. Carter, 84 Mo. App. 483. 70 — Alabama. Davis v. State, — Ala. — , 66 So. 67; Barfield v. Evans, — Ala. — , 65 So. 928; Johnson v. Carden, — Ala. — , 65 .So. 813; Webb & Bros. v. Story, 184 Ala. 583; Kirk- wood v. State, 184 Ala. 9; Hudson v. State, 11 Ala. App. 116; Watson v. State, 8 Ala. App. 414-. Arkansas. Thompson v. Bertrand, 23 Ark. 730. California. People v. Shears, 133 Cal. 154, 65 'Pac. 295; Comptoir D'Eseompte de Par,is v. Dresbach, 78 Cal. 15, 20 Pac. 28. Florida. Eichard v. State, 42 Fla. 528; Mayer v. Wilkins, 37 Fla. 244. Illinois. Gibbons v. Aurora, E. & C. E. Co., 263 111. 266; Brainard v. Brainard, 259 111. 613; Lyons v. Joseph T. Eyerson & Son, 242 111. 409; Belt E. Co. of Chicago v. Con- frey, 209 111. 344; Eankin v. Shar- pies, 206 111. 301; Phillips v. Town of Scales Mound, 195 111. 353; Powers v. City of Chicago, 180 111. App. 355; Christensen v. Oscar Daniels Co., 170 111. App. 59; King v. Gray, 160 111. App. 259; Stack v. East St. Louis & S. Ey. Co., 152 111. App. 613, aff 'd 245 111. 308; Coats v. Chi- cago, E. I & P. Ey. Co., 144 111. App. 81; Hanreddy v. Palilinnas, 139 111. App. 148; Thome v. Crawford, 17 111. App. 395. Indiana. Brooks v. Muncie & P. Trac. Co., 176 Ind. 298; Goodbar v. Lidikey, 136 Ind. 1, 43 Am. St. Eep. 296; City of Newcastle v. Harvey, 54 Ind. App. 243; Citizens' St. Ey. Co. v. Merl, 26 Ind. App. 284; Mul- len v. Bower, 26 Ind. App. 253. Iowa. Hamilton Buggy Co. v. Iowa Buggy Co., 88 Iowa 364; Nor- ris v. Kipp, 74 Iowa 444; Messer v. Eeginnitter, 32 Iowa 312. Michigan. Farrand v. Aldrieh, 85 Mich. 593. Minnesota. Weber v. McClure, 44 Minn. 407. Mississippi. Browning v. State, 30 Miss. 656. Missouri. State v. Furgerson, 162 186 Instructions to Juries. [§82^ It is improper to give instructions containing a statement of general propositions of law, not warranted by the facts in the case, whether the propositions as stated are correct or not, and requests for such instructions may always be refused. 71 The reason why such instructions should not be Mo. 668; John Deere Plow Co. v. Sullivan, 158 Mo. 440; Harris v. Pew, 185 Mo. App. 275; Wood v. Kelly, 82 Mo. App. 598; Plummer v. City of Milan, 79 Mo. App. 439, 1 Mo. App. Rep'r 600. Nebraska. Omaha Loan & Trust Co. v. Douglas County, 62 Neb. 1. North Carolina. Carson v. Nor- folk & C. R. Co., 128 N. C. 95. Oklahoma. Shuler v. Collins, 40 Okla. 126, 136 Pac. 752. Oregon. Turner v. Locy, 37 Ore. 158, 61 Pac. 342. South Carolina. Youngblood v. South Carolina & G. R. Co., 60 S. C. 9, 85 Am. St. Rep. 824n. Texas. Blount v. Henry, — Tex. Civ. App. — , 160 S. W. 418; Cohen v. Cohen, 26 Tex. Civ. App. 315; Taylor v. State (Tex. Cr. App.), 63 S. W. 330; Bailey v. State, 42 Tex. Cr. App. 289; Gann v. State (Tex. Cr. App.), 59 S. W. 896; Jessel v. State, 42 Tex. Cr. App. 72; Mar- tinez v. State (Tex. Cr. App.), 57 S. W. 670. Utah. Beaman v. Martha Wash- ington Min. Co., 23 Utah 139, 63 Pac. 631. Virginia. Peek v. City of Hamp- ton, 115 Va. 855; Fire Ass'n of Phil- adelphia v. Hogwood, 82 Va. 342. Washington. Traver v.i Spokane St. Ry. Co., 25 Wash. 225, 65 Pac. 284. West Virginia. Delmar Oil Co. v. Bartlett, 62 W. Va. 700; State v. Greer, 22 W. Va. 801. Wisconsin. Thayer v. Davis, 75 Wis. 205. United States. Northern Pac. R. Co. v. Paine, 119 U. S. 561, 30 L. Ed. 513. Charges failing to predicate the several postulated findings or men- tal state of the jury as based upon the evidence may be refused. Bar- field v. Evans, — Ala. — , 65 So. 928. It is not error to refuse an instruc- tion based upon a state of facts, to support which there is no testimony. Shuler v. Collins, 40 Okla. 126, 136 Pac. 752. Where the evidence is conflicting the court does not err in refusing an instruction which hypothesizes a predicate of uncontradicted physical facts. Harris v. Pew, 185 Mo. App. 275. In an action of trespass to try title, where an instruction attempts to submit a mere abstract proposi- tion of law, not warranted by the facts, it is properly refused. Blount v. Henry, — Tex. Civ. App. — ■, 160 S. W. 418. 71 — Alabama. Golding v. Mer- chant, 43 Ala. 705. Arkansas. Marshall v. Sloan, 26 Ark. 513. California. Aguirre v. Alexander, 58 Cal. 21; People v. Dallen, 21 Cal. App. 770, 132 Pac. 1064. Florida. German American Lum- ber Co. v. Barrett, 66 Ela. 181. Illinois. White v. St. Louis Transfer Co., 161 111. App. 133. §82] Relation to Pleadings and Evidence. 187 given is that they do not attain the end which courts should always keep in mind, — that of enlightening the jury, — but tend to confuse and mislead, in that they direct the atten- tion of the jury to issues not involved, 72 and are likely to cause the jury to believe that there is evidence to prove the facts referred to in the instructions, when, as a matter of fact, there is no such evidence. 73 "If a court gives a jury the rules of law directly applica- ble to the consideration of the case it is sufficient and any attempt to go into a discussion of the philosophy of such rules or reasons for their existence is more apt to divert attention from the case on trial and befog the real issue to be determined, than to aid in a proper decision of the con- troversy between the parties." 74 A charge, as to its suf- Iowa. Withey v. Fowler Co., 164 Iowa 377. Kentucky. Steamboat Blue Wing v. Buckner, 12 B.Mon. 249. Mississippi. Co-operative Life Ass'n v. McConnieo, 53 Miss. 239. Missouri. State v. Donnelly, 130 Mo. 642. South Dakota. Klaveness v. Freese, 33 S. D. 263. Texas. Norvell v. Oury, 13 Tex. 31; Burney v. State, 21 Tex. App. 565. Virginia. Buster's Ex'r v. Wal- lace, 4 Hen. & M. 82. United States. Haines v. Mc- Laughlin, 135 U. S. 584, 34 L. Ed. 290. Where instructions state mere ab- stract legal propositions without any suggestion or direction for their proper application to the case, there is no error in refusing them._ Withey v.,Fowler Co., 164 Iowa 377. It is not error to fail or refuse to give an instruction which, although it correctly states an abstract prin- ciple of law, is not applicable to the evidence or to the theory upon which the case was tried. Klaveness v. Freeae, 33 S. D. 263. 72— Chicago, B. & Q. E. Co. v. Gregory, 58 111. 272. Instructions framed to cover vague and possible conditions aris- ing from the evidence would tend to confuse and obscure the issues. Dunkin v. City of Hoquiam, 56 Wash. 47, 105 Pac. 149. 73 — Arkansas. Felker v. State, 54 Ark. 489; Little Bock & Ft. S. By. Co. v. Trotter, 37 Ark. 593. Iowa. Moorehead v. Hyde, 38 Iowa 382. , Michigan. Lacy v. Wilson, 24 Mich. 479. Texas. Houston & T. C. By. Co. v. Eider, 62 Tex. 267. 74 — Long v. Ottumwa Eailway & Light Co., 162 Iowa 11. The court should N refuse prayers for instructions which are merely abstract, and involve excursions into the broad and extended fields of le- gal science for the purpose of estab- lishing legal principles having no rel- 188 Iststkuctions TO Jitbies. [§82 ficiency or insufficiency, is to be examined and tested by its applicability to the facts adduced in evidence; 75 and no instruction should be given to a jury which is not predicated upon some theory deducible from at least some portion of the evidence. 70 An instruction as to matters merely offered in evidence is erroneous. 77 A requested instruction that there is no evi- dence to sustain a particular allegation or theory should be refused where there is in fact competent evidence in support of such allegations; 78 and an instruction based upon the theory of the nonexistence of a fact or evidence of a fact which there was evidence tending to prove, is erroneous, and should be refused where there was evidenae from which the jury might find the fact. 79 § 83. Same — Incompetent evidence. As a general rule, if evidence not admissible under the pleadings is admitted over objections made at the proper time, it is error to give instructions based on such evi- dence, 80 and a number of decisions also declare that instruc- evaney to the controversy between North Carolina. Cowell v. Phoenix the parties. State v. Eeigart, 1 Gill Ins. Co., 126 N. C. 684. (Md.) 1, 39 Am. Dec. 628. Texas. Nehring v. McMurrian 75— Brown v. State, 6 Tex. App. (Tex.), 57 S. W. 943; McGee v. West 286. (Tex. Civ: App.), 57 S. W. 928; 76— People v. Sanchez, 24 Cal. 17. Bailey v. State, 42 Tex. Cr. App. 289. 77 — Henline v. Brady, 110 111. 80 — Arkansas. Dickerson v. John- App. 75. son, 24 Ark. 251. 78 — Liner v. State, 124 Ala. 1; Illinois. Illinois Cent. R. Co. v. Cederson v. Oregon Railroad & Nav- McKee, 43 111. 119. igation Co., 38 Ore. 343, 63 Pac. Iowa. Willits v. Chicago, B. & K. 763, 62 Pac. 637. See also, People C. Ry. Co., 80 Iowa 531. v. Lem Deo, 132 Cal. 199, 64 Pac. Michigan. Miller v. Prussian 265; State v. Horton Land & Lum- Nat. Ins. Co.; 158 Mich. 402. ber Co., • 161 Mo. 664; Cowell v. Missouri. ' Harding v. Wright, 119 Phoenix Ins. Co., 126 N. C. 684. Mo. 1; Weaver v. Hendrick, 30 Mo. 79 — Alabama. Liner v. State, 124 502. Ala. 1. New York. Shrimpton & Sons v. Illinois. Caruthers v. Balsley, 89 Dworsky, 2 Misc. 123. HI. App. 559 . Washington. Dunkin v. City of 83] Belation to Pleadings and Evidence. / 189 tions based on evidence outside of the issues raised by the pleadings are erroneous and should not be given, even though no objection was taken to the admission of the evidence. 81 But according to a considerable number of de- cisions, if evidence incompetent under the pleadings is admitted without objection at the time, the court, in charg- ing the jury, is not confined to that part of the evidence which was properly admitted, but may instruct the jury on the legal effect of the incompetent evidence. 82 Hoquiam, 56 Wash. 47, 105 Pao. 149. The reasons for this rule are so obvious that it is impossible that there could be any conflict of opin- ion about its propriety. There are numerous decisions in cases where incompetent evidence was admitted, and instructions ap- plicable thereto given, holding that the giving of such instructions was erroneous. These cases do not dis- close whether timely objections to the admission of the evidence were made or not, and there is no way of determining whether the instruc- tions would have been considered erroneous, in case the evidence was not objected to: Iowa. Roberts v. Eichardson, 39 Iowa 290.' Kansas. Atchison, T. & S. F. E. Co. v. Miller, 39 Kan. 419, 18 Pac. 486. Missouri. Iron Mountain Bank v. Murdock, 62 Mo. 73; Camp v. Hee- lan, 43 Mo. 591; Moffatt v. Conklin, 35 Mo. 453; Matson v. Frazer, 48 Mo. App. 302. Nebraska. McCready v. Phillips, 44 Neb. 790. New York. Finck v. Schaubacher, 34 Misc. 547. Ohio. Cleveland, P. & E. E. Co. v. Nixon, 21 Ohio Cir. Ct. E. 736. Oregon. Buchtel v. Evans, 21 Ore. 309, 28 Pac. 67; Woodward v. Ore- gon Ey. & Nav. Co., 18 Ore. 289, 22 Pac. 1076. Virginia. Eichmond Ey. &" Elec. Co. v. Bowles, 92 Va. 738. 81 — Missouri. Paretti v. Eebe- nack, 81 Mo. App. 494; Safety Fund Nat. Bank of Fitchburg v. Westlake, 21 Mo. App. '565. Oregon. Coos Bay E. Co. v. Sig- lin, 26 Ore. 387, 38 Pac. 192. Texas. McKinney v. Fort, 10 Tex. 220; Texas & P. Ey. Co. v. Durrett, 24 Tex. Civ. App. 103. See also, Dingee v. Unrue's Adm'x, 98 Va. 247. The fact that evidence not ad- missible under the pleadings is ad- mitted without objection will not warrant instructions based thereon, unless the pleadings are amended so as to conform to the evidence, Kirby v. Wabash Ey. Co., 85 Mo. App. 345. 82 — Georgia. Central E. Co. v. Hubbard, 86 Ga. 623; Georgia E. Co. v. Lawrence, 74 Ga. 534; Ocean Steamship Co. v. Williams, 69 Ga. 252; Georgia Eailroad & Banking Co. v. Oaks, 52 Ga. 410. Iowa. Collins v. Collins, 46 Iowa 60. Minnesota. Qualy v. Johnson, 80 Minn. 408. 190 Instructions to Jxjbies. [§83 Where one party introduces evidence against the objec- tion of the other, he cannot complain that an instruction based on such evidence is outside the issues made by the pleadings. 83 And in a suit on a note in which the issue is whether defendant indorsed it, it cannot be objected by de- fendant that the court instructed on the rights of a bona fide holder of an altered instrument, where a converse in- struction on the same subject was given at defendant's request. 84 § 84. Same — Withdrawn or excluded evidence. An instruction based on excluded evidence is' properly refused, even though such evidence was erroneously ex- cluded. 85 When evidence has been admitted and subsequently with- drawn, or has been excluded when offered, it cannot be con- sidered by, the jury for any purpose, and it is therefore error to give instructions based upon such evidence. 86 § 85. Same — Stating exceptions to general rules announced in other instructions. When an instruction lays down a general rule of law ap- plicable to the testimony, but does not state that the rule is subject to exceptions within which the evidence fairly tends to bring the case, it is misleading; 8T but if there is Pennsylvania. Scott v. Sheakly, Massachusetts. Com. v. Cosse- 3 Watts 50. See also, Chafee v. boom, 155 Mass. 298; Hayes v.'Kel- City of Aiken, 57 S. C. 507. ley, 116 Mass. 300. 83 — Bowen v. Carolina, C. G. & Missouri. Caldwell v. Stephens, 57 C. Ey. Co., 34 S. C. 217. Mo. 589; McKinzie v. Hill, 51 Mo. 84 — Iron Mountain Bank v. Arm- 303, 11 Am. Rep. 450. strong, 92 Mo. 265. United States. New York & C. 85 — Smith v. Sanitary Dist. of Min. Syndicate Co. v. Fraser, 130 Chicago, 260 111. 453.' U. S. 611, 32 L. Ed. 1031. 86 — Arkansas. Atkinson v. Gatch- 87 — White v. Thomas, 12 Ohio St. er, 23 Ark. 101; Pleasants v. Scott, 312, 80 Am. Dec. 347. 21 Ark. 371. Illinois. Smith v. Sanitary Dist. of Chicago, 260 111. 453. § 86] Relation to Pleadings and Evidence. 191 no such evidence, the giving of such instruction is unneces- sary and erroneous. 88 Thus, an instruction, in an action to enforce a vendor 's lien, that the vendor may waive his lien by taking security, is erroneous where the evidence merely shows that the vendor took the note of the purchaser for the price. 89 §86. Same — Sufficiency of evidence to support instruc- tions. It is the province of the court to determine whether there is foundation in the evidence for any particular instruc- tion, 90 but since the weight and sufficiency of the evidence to establish a fact in issue is a question solely for the jury, 91 the court should not decline to give an instruction merely because it is of the opinion that the evidence is insufficient to establish the fact, as to do so would invade the province of .the jury. 92 If there is any evidence whatsoever upon which the jury might base a finding, even though such evi- dence is slight, it is sufficient to sustain an instruction, 93 and 88— Eeinback v. Crabtree, 77 111. Co. v. Calkins, 186 111. 104, rev'g 182; Vandalia Coal Co. v. Yemm, 85 111. App. 627. 175 Ind. 524; Fulwider v. Ingels, 87 89— Webb v. Robinson, 14 Ga. 216. Ind. 414. See also, Hadloek v. 90 — State v. Gibbons, 10 Iowa Brooks, , 178 Mass. 425, wherein it 117. was held, under the evidence, that 91 — See eh. VII, ante, "Province it was not necessary to state the of Court and Jury." whole law of champerty. 92 — Peoria, D. & E. Ry. Co. v. Where the court has instructed that Puckett, 42 111. App. 642 ; Union Mut. a person cannot recover for damages Life Ins. Co. v. Buchanan, 100 Ind. which he permits to go on without 73; Boots v. Canine, 94 Ind. 408; making every reasonable effort to Bradford v. Pearson, 12 Mo. 71. have the damages stopped, it is re- 93 — Alabama. Knowles v. Ogle- versible error to add, without evi- tree, 96 Ala. 555; Jones v. Fort, 36 dence to sustain the qualifying Ala. 449; Partridge v. Forsyth, 29 clause, '"unless the jury further be- Ala. 200; Bradford v. Marbury, 12 lieve from the evidence that defend- Ala. 520, 46 Am. Dec. 264. ant directed the plaintiff not to do Arkansas. Goodell v. Bluff City so," since, if the instruction applies Lumber Co., 57 Ark. 203; McNeill to no particular item of damages, it v. Arnold, 22 Ark. 477. is impossible to say how much of the Georgia. Camp v. Phillips, 42 Ga. damages awarded was due to the 289. qualifying clause. Hartford Deposit Illinois. Thompson v. Duff, 119 192 Instructions to Juries. [§86 it will be error for the court to refuse to give a requested instruction based upon such evidence. 94 An instruction may be based upon a fact of which there is no direct evi- dence, if circumstances are proven from which the fact may 111. 226; City of Chicago v. Scholten, 75 111. 468; Milliken v. Marlin, 66 111. 13; Roach v. Willis Coal & Min- ing Co., 183 111. App. 578; Hatcher v. Quincy H. By. & C. Co., 181 111. App. 30; Gibson v. Laflferty, 180 111. App. 629; Morton v. O'Connor, 85 111. App. 273. Indiana. Harris v. State, 155 Ind. 265; Union Mut. Life Ins. Co. v. Buchanan, 110 Ind. 59, 59 Am. Rep. 194; McFadden v. Ferris,, 6 Ind. App. 454. Iowa. Brannum v. O'Connor, 77 Iowa 632; Walker v. Camp, 69 Iowa 741. Missouri. Hazell v. Bank of Tip- ton, 95 Mo. 60, 6 Am. St. Rep. 22; Davis v. Bond, 84 Mo. App. 504. Nebraska. Atkins v. Gladwish, 27 Neb. 841. South Carolina. Chafee v. City of Aiken, 57 S. C. 507; State v. Ezzard, 40 S. C. 312; Allston v. Pickett, 19 S. C. 606. Texas. Fant v. Wright (Tex. Civ. App.), 61 S. W. 514; Frank v. Frank (Tex. Civ. App.), 25 S. W. 819; Robinson v. State (Tex. Cr. App.) 63 S. W. 869; Jackson v. State (Tex. Cr. App:), 61 S. W. 404. Virginia. Dingee v. Unrue'a Adm'x, 98 Va. 247; Honesty v. Com., 81 Va. 283. Where there is evidence upon which the jury might find the defendant guilty of murder in either the first or the second degree, it is not error for the court to instruct in regard to murder in each degree. Robinson v. State (Tex. Cr. App.), 63 S. W. 869. If a case goes to the jury, and there is no evidence tending to prove a fact, it is proper for the court to give an instruction ap- plicable to it, if requested to do so, even though the evidence is so slight as to be insufficient to sup- port a ver'dict founded upon it. Southern R. Co. v. Wilcox, 99 Va. 394. Where a statute was intro- duced in evidence without objec- tion, it was not error to give an in- struction construing it, although' it was not necessary ,to consider such statute in determining the case. Chafee v. City of Aiken, 57 S. C. 507. It is not error for the court to charge upon the whole case, al- though the evidence is .conflicting upon only one issue, where there was no agreement or request that only such issue should be submitted, and the defendant has put in issue the whole of plaintiff's case. Hal- sell v. Neal, 23 Tex. Civ. App. 26. 94— Illinois. Peoria, D. & E. Ry. Co. v. Puckett, 42 111. App. 642; Kane v. Torbit, 23 111. App. 311; Chicago & A. R. Co. v. Calkins, 17 111. App. 55. Iowa. State v. Wright, 112 Iowa 436; De Camp v. Mississippi & M. R. Co., 12 Iowa 348. Minnesota. Squires v. Gamble-Rob- inson Commission Co., 84 Minn. 1. Missouri. Rideiis v. Ridens, 29 Mo. 470. 86] Relation to Pleadings and Evidence. 193 reasonably be inferred. 95 In order to require the submis- sion of a hypothetical case to the jury, the court need not be satisfied that it is fully sustained by the > testimony. It is only necessary that the evidence shall tend to sustain the hypothetical case. 96 It must not be understood from what has b,een said, however, that it is necessary or even proper for the eourt to give instructions based on testimony which, at most, raises a mere possibility or conjecture. 97 It is not easy to draw the line between a total absence of evidence to prove a fact, and evidence confessedly slight; but it seems that if the evidence is of such a nature that reason- 95— Chicago, E. I. & P. Ey. Co. v. Lewis, 109 111. 134. 96— Chicago, E. I. & P. Ey. Co. v. Lewis, 109 111. 134. 97 — Arkansas. Dickerson v. John- son, 24 Ark. 251. California. Lemasters v. South- ern Pac. Co., 131 Cal. 105, 63 Pac. 128. Georgia. Sparks v. State, 111 Ga. 830. Massachusetts. Saunders v. Whit- comb, 177 Mass. 457. \ Missouri. Phelps v. City of Sal- isbury, 161 Mo. 1; O'Connor & Harder Eange & Furnace Co. v. Alexe, 28 Mo. App. 184., North Carolina. Cawfield v. Ashe- ville St. Ey. Co., Ill N. C. 597; Sut- ton v. Madre, 47 N. C. 320; Cobb v. Fogalman, 23 N. C. 440. Texas. Parlin & Orendorff Co. v. Miller, 25 Tex. Civ. App. 190; Lewis v. State, 72 Tex. Cr. App. 237. West Virginia. Bloyd v. Pollock, 27 W. Va. 75. Evidence which merely shows that a minor was present at the time a burglary was committed is insufficient to support an instruc- tion stating the law as to an ac- Blashfield Vol. 1—13 complice who stands by and watches while another commits a crime. Sparks v. State, 111 Ga. 830. The mere personal presence of the plaintiff before the jury will not justify an instruction that, in esti- mating damages, the plaintiff's age is to be taken into consideration. Phelps v. City of Salisbury, 161 Mo. 1. Where, in an action to recover damages for the death of a child, it appears that the deceased was near- ly ' seventeen years of age, and a bright, active boy, who had been for two months working as a fireman upon the identical engine upon which he was riding at the time of the accident, there is no occasion for instructions which deal with the question of the immature judgment of childhood. Lemasters v. South- ern Pac. Co., 131 Cal. 105, 63 Pac. 128. On a prosecution for burglary, where the facts and circumstances are sufficient to justify the jury in finding that the parties acted to- gether, an instruction on the law of principals is proper. Lewis v. State, 72 Tex. Cr. App. 237. 194 Instetjctions to Jueies. [§86 able men might draw an inference therefrom, the court should instruct the jury in regard to it. 98 § 87. Same — Illustrations of rule. Where a defendant pleads limitations and laches, but the evidence does not raise such issues, it is error to instruct that the claim must have been asserted within a reasonable time." "Where the plaintiff declares upon a completed sale, it is erroneous for the court, in instructing for him, to submit to the jury the question of an executory contract of sale, especially where there is no evidence * * * to prove the latter." * "In the absence of evidence showing an agreement to pay a particular sum for services rendered, or that the services rendered were reasonably worth that sum, it is error in the court to instruct on the basis of an assumed particular sum as the measure of plaintiff's re- covery." 2 An instruction that, "if the jury find that the consideration for which the note sued on was given has wholly failed, they will find for the defendant," is errone- ous, if there is no evidence of what was the consideration of the note. 3 So a charge as to the effect of a contract is erroneous, where there is no evidence of such contract. 4 In negligence cases, the practice of stating the allegations of a petition, and then construing them, or of enumerating grounds of negligence, in support of which there is no evi- dence, is not to be approved. 5 98 — California. WaHgren v. Mar- upon that, subject are relevant here, ket St. Ey. Co., 132 Cal. 656, 32 Pac. See £$ 69, 70, ante, "Directing ver- 308. diet. " Illinois. Missouri Furnace Co. v. 99 — Norton v. Lea, — Tex. Civ. Abend, 107 111. 44, 47 Am. Rep. 425n; App. — , 170 S. W. 267. Chicago, B. & Q. E. Co. v. Gregory, 1 — Seckel v. Scott, 66 111. 106. 58 111. 272; Morton v. O'Connor, 85 2 — Biglow v. Carney, 18 Mo. App. 111. App. 273; Peoria, D. & E. Ey. 534. Co. v. Puckett, 42 111. App. 642. 3-r^Webster College v. Tyler, 35 Texas. Bishop v. State, 43 Tex. Mo. 268. 402. 4 — Locke v. Priestly^ Express The question here is substantially Wagon & Sleigh Co., 71 Mich. 263. the same as where the court is asked 5 — Carnego v. Crescent Coal Co., to direct a verdict, and authorities 163 Iowa 194. § 87] Relation to Pleadings and Evidence. 195 Instructions as to contributory negligence should not be given when there is no evidence in support of such issue, 6 and in an action for the death of a person killed by a train, where there was no evidence that deceased sat down by a depot platform and was struck while asleep, a charge as to such contributory negligence was error. 7 In an action for wrongful death, an instruction based upon the theory that deceased was intoxicated at the time he was killed was properly refused where it was not shown that he drank any liquor when he stopped at a bar for lunch on the day .of the accident. 8 "Where a plaintiff complains of personal violence as the cause of a physical disability, and no evidence is given in support of any other theory, it is error to give the jury to understand that they may find that the violence aggravated a pre-existing disability. ' ' 9 In an action for injuries sustained at a street crossing, instructions predicated on the violation of an ordinance or statute as to blowing a whistle, when no such ordinance or statute was shown, were erroneous. 10 " In an action for injuries to a boy who was struck by a street car, a requested instruction, stating in the abstract the duty which a public corporation operating a street rail- way owes to the traveling public by virtue of its franchise, is properly refused, as being collateral in its nature. 11 An instruction as to the effect of latent defects is properly refused where there is no evidence on which to base it. 12 In an action for the death of a person caught in an eleva- tor shaft, where there was no evidence of incompetency of 6— City of Covington v. Diehl, 22 10— New York, C. & St. L. R. Co. Ky. L. Rep. 955; Rinard v. Omaha, v. Lind, 180 Ind. 38. K. C. & E. By. Co., 164 Mo. 270. 11— Long v. Ottumwa Railway & 7 — Hunnicut v. Alabama Great Light Co., 162 Iowa 11. Southern R. Co. (Miss.), 50 So. 697. 12— Keefe v. Armour & Co., 171 8 — Gibbons v. Aurora, E. & C. R. 111. App. 573. Co., 263 111. 266. >. 9 — Campau v. North, 39 Mich. 606, 33 Am. Rep. 433n. 196 Instructions to Juries. [§87 the elevator conductor, though death was alleged to have been caused by such incompetency, the trial court did not err in refusing to instruct on such issue. 13 In an action for the death of a servant killed by the fall of a bank of cotton seed, while shoveling same, where no one saw the accident, and there was evidence that deceased was found standing nearly straight up, the contention that such deceased was asleep was a mere surmise not borne out by the evidence, and the court did not err in refusing to charge as to contributory negligence, though such defense was pleaded. 14 A requested charge based on section 21 of the Illinois Mining Act (J. & A. fl7495), as td the duties of mine ex- aminers to post notices of danger, etc., is properly refused where the evidence does not show that a miner killed came under any of the conditions enumerated. 15 In an action for the death of an engineman in a collision, where the evidence did not show knowledge of the violation of rules by employees, or a custom to disregard such rules, an instruction on sudi subject was erroneous. 16 The giving of an instruction upon the element of damages unsupported by evidence is misleading and erroneous. 17 However, a charge. that "a railroad company, free from 13 — Zimman v. Miller Hotel Co., v. Wilmington & W. E. Co., 126 N. 95 Neb. 809, 5 N. C. C. A. 505. C. 712. 14 — Industrial Cotton Oil Cor v. There was no error in refusing t'o Lial, — Tex. Civ. App. — , 164 S. W. instruct that in determining dam- 40. ' ages the age and expectancy of the ]5 — Wilmington Star Min. Co. v. plaintiff is to be considered, where Fulton, 205 U. S. 60, 51 L. Ed. 708. there was no proof of her expectancy 16 — Southern E. Co. v. Johnson 's at her age. Johnson v. Springfield Adm'x, 111 Va. 499, Ann. Cas. Trac. Co., 176 Mo. App. 174. 1912 A 81n. An instruction directing the jury 17 — Illinois. Judd v. Isenhart, 9.1 to consider a plaintiff's right to 111. App. 520; Cicero & P. St. Ey. recover "for loss of time and in- Co. v. Eichter, 85 111. App. 591. ability to labor" is misleading and Michigan. Kethledge v. City of confusing where there is no proof Petoskey, 179 Mich. 301. of damages for " inability to labor. " North Carolina. Wilkie v. Ealeigh Devlin v. City of St. Louis, 252 Mo. & C. P. E. Co., 128 N. C. 113; Smith 203. I § 87] Relation to Pleadings and Evidence. 197 negligence, is not liable for damages from fire kindled by sparks or clinkers from locomotives" states a correct ab- stract proposition and is not erroneous where the question of the railroad's negligence is left to the jury by other appropriate charges. 18 In criminal cases, an instruction which misstates evidence of the state's witnesses by positively limiting the commis- sion of an offense to a certain day is properly refused, 19 and on a prosecution for selling intoxicating Jiquors, a special charge which sought to narrow the issues as to whether a sale was made on a certain Saturday was properly refused as being too restrictive, the evidence not being clear as to which Saturday the sale was made. 20 Also, on a prosecution for violating prohibition laws, where the defendant introduced evidence that the witness on "one" occasion stated that he had bought liquor of another, the court properly refused a written charge that if the witness made a "number" of statements that he did not purchase from defendant, etc. 21 On a prosecution for contributing to the dependency of a girl, the omission to give an offered instruction as to the good character of the accused, where no evidence was offered in support thereof, was not error. 22 On a prosecution for assault with intent to rape, re- quested instructions as to simple assault, or assault and battery, were properly refused where there was no evidence of such offenses, 23 and where an accused was charged with assault in the second degree, and the evidence showed the consummated crime of rape, it was error to submit as an included crime assault in the third degree, of which there was no evidence. 24 18 — Graey v. Atlantic Coast Line 22 — People v. Cruse, 24 Cal. App. E. Co., 51 Fla. 651. 497, 141 Pac. 936. 19— Frost v. State, 124 Ala. 71. 23— State v. Sparks, 79 Kan. 548, 20 — De Lerosa v. State, — Tex. 99 Pac. 1130. Cr. App. — , 170 S. W. 312. 24— State v. Kruger, 60 Wash. 21— Faulk v. State, 4 Ala. App. 542, 111 Pac. 769. 177. 198 Instructions to Juries. [§ 87 An instruction as to what constitutes murder in the first degree, stating that if accused abandoned the intention to rob before he shot, then the killing" would not have been committed in an attempt to rob, held properly refused where there was no evidence of such abandonment. 25 On a trial for murder, an instruction that if the jury believe from the evidence that the only evidence tending to corroborate the testimony of a certain witness that tends to connect the defendant with the commission of the offense is that of another named witness, and if the jury do not believe such witness they must find defendant not guilty, is properly refused where there was other testimony tending to corroborate the first witness. 26 An instruction that, "if they [the jury] believed * * * that the defendant, at the time he fired the pistol, intended to kill A., the deceased, and did kill him, without any provo- cation, they will find him guilty of murder in the first de- gree," is erroneous, where there was evidence to show provocation. 27 § 88. Same— Violation of rule as ground for reversal. Ordinarily the giving of an abstract instruction not ap- plicable to the facts in issue is error warranting reversal 28 if it appears that such instruction misled or might have misled the jury, to the prejudice of the party complaining. 29 25 — State v. Mewhinney, 43 Utah 29 — Alabama. Tennessee Valley 135, 134 Pac. 632. Bank v. S. M. Avery & Sons, 9 Ala. 26— Tennison v. State, 183 Ala. 1. App. 363. 27 — Harris v. State, 36 Ark. 127. California. People v. Devine, 95 28— Fisher v. Central Lead Co., Cal. 227, 30 Pae. 378. 156 Mo. 479. . Florida. Florala Saw Mill Co. v. The submission of an issue made Smith, 55 Fla. 447. by the pleadings, where no evidence Illinois. Illinois Match Co. v. Chi- tending to sustain it has been intro- cago, B. I. & P. B. Co., 250 111. 396; dueed,^is an error calculated to mis- Lyons v. Joseph T. Byerson & Son, lead the jury and requires a reversal 242 111. 409; Webber v. Brown, 38 of the judgment. Gulf, C. & S. F. 111. 87. By. Co. v. Anderson, — Tex. Civ. Indiana. Crowder v. Beed, 80 Ind. App. — , 126 S. W. 928. 1; Nicklaus v. Burns, 75 Ind. 93. §88] Relation to Pleadings and Evidence. 199 If an instruction submits an issue not warranted by the evidence, 30 or is based on. facts not in evidence, 31 or is so Iowa. Farmers' & Merchants' State Bank v. Shaffer^ — Iowa — , 147 N. W. 851; Case v. Illinois Cent. E. Co., 38 Iowa 581. Kansas. Zimmerman v. Knox, 34 Kan. 245, 8 Pac. 104; Eaper v. Blair, 24 Kan. 374. Kentucky. Bobards v. Wolfe, 1 Dana 156. Maine. Weston v. HigginSj 40 Me. 102; Hopkins' v. Fowler, 39 Me. 568. Michigan. Lunde v. Detroit United By., 177 Mich. 374. Missouri. Eaybourn v. Phillips, 160 Mo. App. 534. Nebraska. Esterly Harvesting Mach. Co. v. Frolkey, 34 Neb. 110; Clark v. State, 32 Neb. 246. New York. Crbssman v. Harri- son, 4 Eob. 38. Ohio. Aetna Ins. Co. v. Eeed, 33 Ohio St. 283. Pennsylvania. Lee v. Newell, 107 Pa. 283. Texas. Cravens v. Wilson, 48 Tex. 324; Yarborough v. Tate, 14 Tex. 483; Thrasher v. State, 3 Tex. App. 281. Virginia. Pasley v. English, 10 Grat. 236. Wisconsin. Ward v. Henry, 19 Wis. 76, 88 Am. Dee. 672. 30 — Missouri. Cottrell v. Spiess, 23 Mo. App. 35. Pennsylvania. Philadelphia, W. & B. E. Co. v. Alvord, 128 Pa. 42. South Carolina. Sims v. Southern Ey. Co., 59 S. C. 246. Texas. Cook v. Dennis, 61 Tex. 246; Blanton v. Mayes, 58 Tex. 422; Corzine v. Morrison, 37 Tex. 511; Austin v. Talk, 20 Tex. 164; An- drews v. Smithwiek, 20 Tex. Ill; Lee v. Hamilton, 12 Tex. 413; Chicago, E. I. & G. Ey. Co. v. Forrester, — Tex. Civ. App. — , 137 S. W. 162. Where a statute is more stringent in its regulations as to the safe- guards to be provided by railroad companies at crossings and at other places, it is error, in an action against a railroad company for in- juries occurring at a crossing, to give to the jury any instructions as to such statutes, if the accident did not occur at the crossing, but some dis- tance from it. Sims v. Southern Ey. Co., 59 S. C. 246. Error in submitting issue not raised by evidence is reversible un- less it is clear the jury were not misled. Chicago, E. I. & G. Ey. Co. v. Forrester, — Tex. Civ. App. — , 137 S. W. 162. 31 — Alabama. Goldsmith v. Mc- Cafferty, 101 Ala. 663. Arkansas. State Bank v. Hub- bard, 8 Ark. 183. Colorado — Eara Avis Gold & Sil- ver Min. Co. v. Bouscher, 9 Colo. 385, 12 Pac. 385; Denver & E. G. E. Co. v. Eobinson, 6 Colo. App. 432, 40 Pac. 840. Georgia. Ashworth v. East Ten- nessee, V. & G. Ey. Co., 94 Ga. 715; Livingston v. Hudson, 85 Ga. 835. Illinois. Illinois Cent. E. Co. v. Hileman, 53 HI. App. 57; Irwin v. Atkins, 8 111. App. 221. Maryland. Marshall v. Haney, 4 Md. 498; Long v. Eakle, 4 Md. 454. Michigan. Briggs v. Fireman's Fund Ins. Co., 65 Mich. 52. Missouri. Waddingham v. Hulett, 92 Mo. 528; Musick v. Atlantic & P. E. Co., 57 Mo. 134; State v. Bailey, 57 Mo. 131; Bowles v. Lewis, 58 Mo. 200 Instructions to Jtjbies. [§88 worded as to lead the jury to infer the existence of a state of facts entirely at variance with the evidence, 32 the error will almost invariably be considered a ground for reversal. A number of cases illustrative of this principle will be found in the notes. 33 Like other general rules, this is subject to exception, and if the record shows affirmatively and clearly that the jury were not misled, and that the objecting party was not in- jured, the case will not be reversed. 34 The giving of in- App. 649; Stokes v. Ravenswood Distillery Co., 2 Mo. App. 1093. Montana. Sheehy v. Flaherty, 8 Mont. 365, 20 Pac. 687. ' Nebraska. Clark v. State, 32 Neb. 246. New York. Black v. Brooklyn City R. Co., 108 N. T. 640. North Carolina. King v. Wells, 94 N. C. 344. Texas. Harrell v. Houston, 66 Tex. 278; Atchison, T. & S. F. Ey. Co. v. Click, 5 Tex. Civ. App. 224; Wilson v. State (Tex. Cr. App.), 34 S. W. 284. Washington. Martin v. Union Mut. Ins. Co., 13 Wash. 275, 43 Pac. 53. 32— Caw v. People, 3 Neb. 357. 33 — On a criminal prosecution it was held reversible error to instruct the jury that, if defendant formed a conspiracy to commit the crime, and became intoxicated to nerve himself to commit it, his intoxica- tion would be no excuse, there being no evidence that he became intoxi- cated for such purpose. Clark v. State, 32 Neb. 246. In an action for damages, caused by the alleged negligence of the defendant railway company, it was held reversible error to charge as to the duty of the company in the selection and retention of its em- ployees, where there was no evidence or issue as to that subject to submit to the jury. Houston & T. C. Ry. Co. v. Gilmore, 62 Tex. 391. In an action for personal injuries sustained while crossing defendant's track, the court charged the jury as to the duties of railroad companies in operating trains over public cross- ings, and stated that a "failure to comply with those requirements is made criminal under the law." . It was held that this instruction was inapplicable, and ground for a new trial, where it appeared that the place where plaintiff was injured was not a public crossing. Ashworth v. East Tennessee, V. & G. Ry. Co., 94 Ga. 715. 34 — Alabama. Lockridgev.Brown, 184 Ala. 106. California. People v. Cochran, 61 Cal. 548. Georgia. Daniels v. Western & A. R. Co., 96 Ga. 786. Iowa. Farmers' & Merchants' State Bank v. Shaffer, — Iowa — , 147 N. W. 851; Hall v. Stewart, 58 Iowa 681. Louisiana. State v. Durbin, 22 La. Ann. 154. Missouri. Riley v. City of Inde- pendence, 258 Mo. 671, 7 N. C. C. A. 191; Berry v. Missouri Pac. Ry. Co., 124 Mo. 223. §88] Relation to Pleadings and Evidence. 201 structions which consist in mere abstract and general propositions of law which could not arise upon the testi- mony will not, in general, be ground for reversal, 35 unless it satisfactorily appears that the jury were misled, to the prejudice of the party complaining. 36 And it has also been held that the statement of an abstract proposition, even though not applicable to the case, furnishes no just ground of complaint, where it is given merely for the purpose of Nebraska. Labaree v. Klosterman, 33 Neb. 150; Waters v. Shafer, 25 Neb. 225. North Carolina. Craig & Wilson v. Stewart & Jones, 163 N. C. 531; Bryan v. Cowles, 152 N. C. 767. South Carolina. Mason v. South- ern By. Co., 58 S. C. 70, 53 L. B. A. 913, 79 Am. St. Bep. 826; Petrie v. Columbia & G. B. Co., 29 S. C. 303. Texas. Gulf, C. & S. F. By. Co. v. Greenlee, 70 Tex. 553; Thomas v. Ingram, 20 Tex. 727. Virginia. Beed v. Com., 98 Va. 817. Washington. Graham v. Allen & Nelson Mill Co., 78 Wash. 589, 139 Pac. 591. The giving of an instruction stat- ing an abstract principle of law in a criminal case is not error unless the principle stated is erroneous, and, unless the court can see that an instruction not applicable to the facts of the case has confused or misled the jury, it will not reverse the judgment in the lower court for the giving of an abstract instruc- tion. Beed v. Com., 98 Va. '817. 35 — Alabama. Fleming v. Luns- ford, 163 Ala. 540; McCutchen v. Loggins, 109 Ala. 457; Payne v. Crawford, 102 Ala. 387; Shaungut's Adm'r v. Udell, 93 Ala. 302. California. People v. March, 6 Cal. 543. Florida. Proctor v. Hart, 5 Fla. 465. Illinois. TJpstone v. People, 109 111. 169; Christensen v. Oscar Daniels Co., 170 111. App. 59; Miller v. Kenwood Bridge Co., 169 111. App. 404. Iowa. McGregor v. Armill, 2 Iowa 30. Louisiana. State v. Canty, 41 La. Ann. 587; State v. Johnson, 33 La. Ann. 889. Missouri. Benjamin v. Metropoli- tan St.. By. Co., 133 Mo. 274; Grout v. Central Elec. B. Co., 151 Mo. App. 330. Nebraska. Caw v. People, 3 Neb. 357. Ohio. Creed v. Commercial Bank of Cincinnati, 11 Ohio 489; Beed v. McGrew, 5 Ohio 375. Oregon. Salomon v. Cress, 22 Ore. 177, 29 Pac. 439. .Wisconsin. Ward v. Henry, 19 Wis. 76, 88 Am. Dec. 672; Lee v. Merrick, 8 Wis. 229. Frequently, appellate courts al- low abstract instructions to pass in cases where the court is satisfied that the error was not prejudicial. Grout v. Central Elec. B. Co., 151 Mo. App. 330. 36 — Herring v. Skaggs, 73 Ala. 446; Bernstein v. Humes, 71 Ala. 260; Pittsburg, Ft. W. & C. B. Co. v. Slusser, 19 Ohio St. 157. 202 Instktjctions to Jueies. [§88 pointing out well-known distinctions, 37 or to illustrate and emphasize rules governing the relations of the parties, and their respective rights and responsibilities. 38 An instruc- tion stating a correct proposition of law is not necessarily- misleading, although it refers in no way to the evidence. 30 So, where an instruction is based on a state of facts not in evidence, but favorable to the appellant, he has no right to complain of the giving of such instruction; 40 and a party who has asked instructions on a particular point cannot afterwards complain of instructions given by the court upon that point, on the ground that there is no evidence to support the instructions. 41 So, an instruction which is out- side of the issues raised by the pleadings will not be a ground for reversal if it is. favorable to the party com- plaining. 42 § 89. Necessity of concrete application to facts of case. Abstract instructions should be concretely applied to the case. 43 The trial judge should not leave the jury to apply general principles of law to a case, but he should inform the jury what the law is as applied to the facts. 44 However 37 — McGrew v. Missouri Pao. By. I. & B. By. Co. v. Patterson, 26 Ind. Co., 109 Mo. 582. App. 295. 38 — West Memphis Packet Co. v. 40 — Johnson v. MoKee, 27 Mich. White, 99 Tenn. 256, 38 L. B. A. 427. 471; Ft. Worth & D. C. Ey. Co. v. See also, Mason v. Southern Ey. Co., Peters, 7 Tex. Civ. App. 78. 58" S. C. 70, 53 L. E. A. 913, 79 Am. 41— Spears v. Town of Mt. Ayr, St. Eep. 826. A definition of "prob- 66 Iowa 721. able cause," given merely as an 42 — Miller v. Boot,, 77 Iowa 545; illustration, and having no practical Paretti v. Eebenack, 81 Mo. App. application to the case, is not ground 494; Terrapin v. Barker, 26 Okla. for reversal. Baker v. Hornick, 57 93, 109 Pac. 931. S. C. 213. 43— Baltimore & O. S. W. E. Co. 39— Bosqui v. Sutro E. Co., 131 v. Pox, 113 111. App. 180. Cal. 390, 63 Pac. 682. An instruc- 44 — Arkansas. Shinn v. Tucker, tion that national bank notes are 37 Ark. 580. not money for the purpose of tender, Connecticut. Morris v. Piatt, 32 states the law, and cannot be prejudi- Conn. 75. cial, although the evidence contained Georgia. Baldwin v. State, 75 Ga. no reference to bank notes. Chicago, 489. 89] Belation to Pleadings and Evidence. 203 pertinent and applicable an instruction, may be, it is ab- stract unless made to apply in express terms to the facts in issue. 46 As to wbetber the giving of instructions in the form of general propositions of law without a concrete application to the facts of the case is ground for reversal, the correct Illinois. Hassett v. Johnson, 48 111. 68; Hite v. Blandford, 45 111. 9; Illinois Cent. E. Co. v. McClelland, 42 111. 355; Chicago & A. B. Co. v. TJtley, 38 111. 410; Atkinson v. Les- ter, 2 111. 407; Heimann v. Kinnare, 73 111. App. 184. Indiana. Hutchinson v. Wenzel, 155 Ind. 49. Iowa. Seekel v. Norman, 71 Iowa 264; State v. Glynden, 51 Iowa 463. Kentucky. Brown v. Wilson, 1 Litt. 232. Louisiana. State v. Stouderman, 6 La. Ann'. 286. Maine. State v. Pike, 65 Me. 111. North Carolina. State v. Jones, 87 N. C. 547; State v. Boon, 82 N. C. 637. Pennsylvania. Eider v. Maul, 70 Pa. 15. South Dakota. See Barker v. Coats, 34 S. D. 291. Tennessee. Memphis City Ey. Co. v. Logue, 13 Lea 32; East Tennes- see, V. &G. E. Co. v. Duffield, 12 Lea 63, 47 Am. Eep. 319. Texas. Hargis v. St. Louis, A. & T. Ey. Co., 75 Tex. 19; Louisiana Extension Ey.. Co. v. Carstens, 19 Tex. Civ. App. 190. Vermont. State v. McDonnell, 32 Vt. 491; Mason v. Silver, 1 Aik. 367. West Virginia. Wilhelm v. Par- kersburg, M. & I. Ey. Co., — W. Va. — , 82 8. E. 1089. "It is not the province of the judge to impress any particular view of the facts upon the jury, but it is his province to make his charge so directly applicable to the facts as to enable the jury to render a correct verdict. To leave as little room as possible for them to make mistakes in applying the law to the facts, which they may be very liable to do when they have only general ab- stract propositions given to them in charge, there ought, if possible, to be no room for misunderstanding the charge or its application, and to this end it ought to be specific and direct." East Tennessee, V. & G. E. Co. v. Toppins, 10 Lea (Tenn.), 64. Nothing is more dangerous than to lay down "general propositions which, instead of aiding, scarcely ever fail to mislead, juries. Courts should apply the principles to the facts in evidence, stating the facts hypothetically. Gorman v. Camp- bell, 14 Ga. 142. 45 — Clarke v. Baker, 7 J. J. Marsh. (Ky.) 197; Metcalfe v. Conner, Litt. Sel. Cas. (Ky.) 370. In a hypothet- ical statement of facts as a basis for the application of the principles of law governing the case, while it is necessary that all the material facts which the evidence reasonably tends to prove shall be stated, — that is to say, facts essential to the validity of the hypothesis, — it is not necessary to include the subsidiary and evidential facts. Hutchinson v. Wenzel, 155 Ind. 49. 204 Instbuctions to Jueies. [§89 rule would seem to be that if the facts of the case are voluminous and complicated, or of such nature that a body of men unacquainted with the law would find difficulty in applying to the facts a general principle of law, the judg- ment should be reversed if the instructions given v consist merely in a statement of general principles; and that, if the facts are few and simple, and of such a nature that a general principle of law may be easily applied, a judgment should not be reversed for the giving of such an instruc- tion. 48 The decisions* as to this proposition are, however, conflicting. In jurisdictions where the court is required, by express statutory provision, to apply the principles of law to the facts of the case in charging the jury, it has been held reversible error to give instructions which deal in mere .generalities and abstractions; 47 and in other jurisdictions, where no such statutes exist, judgments have been reversed for instructions defective in this regard. 48 In some cases it has been held that the giving of such instructions is not a sufficient -ground for reversal, 49 and, in others, that error cannot be assigned because of the giving of such instruc- tions, unless more specific instructions are requested. 60 It 46 — Mulrone v. Marshall, 35 Mont. Orleans Ins. Ass 'n v. Piaggio, 16 238, 88 Pac. 797. Wall. 378, 21 L. Ed. 358. Since, presumptively, an erroneous 50 — Hansen v. Gaar, Scott & Co., proposition of law, referring in no 68 Minn. 68; Kleintobb v. Trescott, way to the evidence in the case sub- 4 Watts (Pa.), 301; East Tennessee, mitted to the jury, is not prejudicial, V. & G. E. Co. v. Toppins, 10 Lea it must follow that a correct proposi- (Tenn.) 58. See Villereal v. State tion of law, not based upon the evi- (Tex. Cr. App.), 61 S. W. 715. dence, will not necessarily mislead Compare Seekel v. Norman, 71 the jury. Bosqui v. Sutro E. Co;, Iowa 264, where it was held that 131 Cal. 390, 63 Pac. 682. where an abstract rule of law, 47 — State v. Jones, 87 N. C. 547. though correct, may be misleading, 48 — Morris v. Piatt, 32 Conn. 82; in the absence of instructions for Fisher v, Central Lead Co., 156 Mo. its application, such instructions 479; Mason v. Silver, 1 Aik. (Vt.) should be given by the court, even 367. though not asked for by a party. 49 — Taylor v. Felsing, 164 111. 331; In this state the court is required Little v. Munson, 54 111. App. 437; by statute to state all the law ap- Axtell v. Caldwell, 24 Pa. 88; New plicable to a case, even though not § 89] Relation to Pleadings and Evidence. 205 has. also been held, very properly, that the giving of an abstract instruction, which correctly states the law applica- ble to the case at bar, cannot be assigned for error, where it is followed immediately by an instruction applying the law thus stated to the facts, 51 or where, taken in connection with the other instructions, the charge advises the jury con- cerning the evidence applicable to the issues clearly and in the concrete. 52 The rule that an instruction is improper which is ex- pressed in general and abstract terms is applicable only where the trial takes place before a jury. The reason of the rule is that such an instruction is apt to mislead the jury. No ground can exist for the enforcement of such a rule, where the trial is before the court. 53 requested. See generally, ch. XV, Owens, 20 Colo. 107, 36 Pae. 848; post, "Bequests for Instructions." Blaekwell v. Lynchburg & D. B. 51— First Nat. Bank of Springfield Co., Ill N. C. 151, 17 L. E. A. 729n, v. Gatton, 71 111. App. 323; MeGrew 32 Am. St. Eep. 786. v. Missouri Pac. Ey. Co., 109 Mo. 53— Vigus v. O'Bannon, 118 111. 582. 334. 52 — Denver Tramway Co. v. CHAPTEE IX. Stating Issues to Juby. § 90. Manner of stating issues. § 91. Use of language of pleading in stating issues. § 92. Referring jury to pleading. §"93. Illustrations of rule. § 94. Erroneous statement of issues. § 95. Incomplete statement of issues. § 96. Withdrawal of issues. § 90. Manner of stating issues. Only the issues of fact raised by the pleadings should be submitted to the jury and not mere questions of fact grow- ing out of the evidence, 1 and only such issues should be submitted as are necessary to present the material matters in dispute. 2 It is not required that the issues should all be stated in a single paragraph of the charge. It is sufficient if they are fairly and fully stated to the jury in some part of the charge in such a manner as to be understood by the jury. 3 Thus, the court may state in one instruction the issues as raised by the pleadings, and in another instruction 1 — Busbee v. "Western North Caro- Where instructions were inter- lina Land & Lumber Co., 151 N. 0. jected into a parfc of other instruc- 513. i tions stating the issues, in such a 2 — Busbee v. Western North Carp- manner as to leave the impression lina Land & Lumber Co., 151 N. C. that all issues previously stated were 513. to be submitted, the error was prej- The issues should be coinprehen- udicial. McDivitt v. Des Moines sive enough to determine the rights City B. Co., 141 Iowa 689. of the parties and to support the 3 — Timins v. Chicago, R. I. & P. verdict and judgment. Busbee v. By. Co., 72 Iowa 94; Siltz v. Hawk- Western , North Carolina Land & eye Ins. Co., 71 Iowa 710; Chicago, Lumber Co., 151 N. C. 513. B. I. & P. By. Co. v. Groves, 56 Kan. ( 206 ) • § 91] Stating Issues to Jury. 207 state that a part of the case is admitted. 4 It is often difficult to frame a single instruction which shall embrace all the phases of a complicated case. 5 Where the issues have once been stated, a repetition is unnecessary. 6 If the issues in- volved are such as to require .explanation, the best practice is to do this in a general charge, and not submit the case entirely on charges asked by the parties and given. 7 The issues must, of course, be fairly and impartially stated, and not so as to put an undue burden upon either party, 8 and it is error to give the plaintiff's contentipn without also stat- ing the defendant's contention. 9 If the instructions are required by statute to be in writing, the statement of the issue should be in writing, and it is not proper to make the statement by reading from the pleadings portions which are not incorporated in the instructions. 10 § 91. Use of language of pleading in stating issues. While it is not improper to submit the issues in the terms in which they are raised by the pleadings, 11 it is the duty of the trial court to make the issue as plain to the jury as 601, 44 Pac. 628; Fullerton v. St. 8— Short v. Kelly (Tex. Civ. App.), Louis, I. M. & S. By. Co., 84 Mo. 62 S. W. 944. App. 498. In stating the allegations of the "It is not necessary that the is- pleadings the charge should always sues be grouped and stated in sep- give their substance correctly. Gulf, arate paragraphs of the charge, de- C. & S. F. R. Co. v. Walters, — Tex. voted to that purpose alone. It is civ. App. 107 S. W. 369. enough if the instructions, as a 9— Brown v. Everett Ridley Ragan whole, point out the entire issue in q ^ ^ q. .q . the case." Meyer v. Boepple Button i'o-Hall 'v. Carter, 74 Iowa 364. Co., 112 Iowa 51. n tt tvt „,„■■, ™, „ tt j o o..t JO 11— Hess v. Newcomer, 7 Md. 325; 4 — Haymond v. Saucer, 84 Ind. 3. _, , _ , „ _ . . 5-Chicago, R. I. & P. Ry. Co. v. *? anters Bank of Prlnce Geor S e ' s Groves, 56 Kan. 601, 44 Pac. 628; , Co - v " Bank of Alexandria, 10 Gill & Muehlhausen v. St. Louis R. Co., J ' < Md -> 346 5 Atchison, T. & S. F. 91 Mo. 332. E y- Co - v - Cuniffe (Tex. Civ. App.), 6— Richmond v. Sundburg, 77 5r s - w - 692 - Iowa 255; Doran v. Waterloo, C. F. Jt is correct practice to state the & N. Ry. Co., — Iowa — , 147 N. issues made by the pleadings, and it W. 1100. is not error to properly summarize 7 — Redus v. Burnett, 59 Tex. 576. the allegations of the pleadings. 208 Instructions 'to Juries. [§91 practicable, regardless of whether the language of the pleadings does so or not. 1 ? The court, in stating the issues to the jury, need not con- fine itself to the express averments of the pleadings. It will be sufficient if the substance of the issues be correctly stated in such a manner as to work no prejudice, 13 and the practice of copying the pleadings into the instructions with unnecessary fullness is disapproved. 14 Of course where the pleadings contain a clear statement of the issues so that when copied they intelligently present the very matters to be tried, there is no error in copying them in stating the issues, 15 although as a general rule it is better for the court to state the exact matters to be tried in its own language, omitting all extraneous or collateral matters, and especially taking from the case all issues which have been withdrawn. 16 Chicago, R. I. & G. R. Co. v. Bentley, 43 Okla. 469, 143 Pac. 175. While it may not be necessary to make a preliminary statement of the issues raised by the pleadings, it is not error to state the issues, and a paragraph of a charge wherein part of the petition is copied, in stating the issues is not objectionable. Lisle-Dunning Const. Co. v. McCall, — Tex. Civ. App. — , 167 S. W. 810. 12 — Stephens v. Brill, 159 Iowa 620. ' • 13 — Sage v. Haines, 76 Iowa 581. "It is unnecessary for the court * * * to state the substance of the matters pleaded by either party. It is only necessary to submit to the jury the questions of fact raised by the pleadings, and instruct them upon the law as to the issues sub- mitted. " Galveston, H. & S. A. Ry. Co. v. Smith, 24 Tex. Civ. App. 127. 14 — Stephens v. Brill, 159 Iowa 620. 15 — Canfield v. Chicago, R. I. & P. R. Co., 142 Iowa 658. Where the pleadings are concise, the language thereof may be fol- lowed in the instructions. Stephens v. Brill, 159 Iowa 620. Where the pleadings were clear and concise and stated the exact issues, and the parties by their coun- sel agreed that the pleadings might be used in the instructions there was no error. Dean v. Carpenter, 134 Iowa 275. 16— Canfield v. Chicago, R. I. & P. R. Co., 142 Iowa 658. It is the duty of the trial court to cull from the pleadings the exact matters to be, submitted to the. jury, and it is bad practice, if not revers- ible error, to copy the pleadings, leaving it to the jury to discover what points are to be considered by them. Canfield v. Chicago, R. I. & P. R. Co., 142 Iowa 658. An instruction setting forth the §91] Stating Issues to Juey. 209 The judge is not required to recite any more of the plead- ings than he deems necessary, and it is the duty of a party, if there is an omission, to supply it by requesting a special charge. 17 Where the pleadings are copied for a statement of the issues, no prejudice will be presumed, but the court will look to the statement so made, and if it appears that the issues are so stated as to clearly present the matters in- volved and there is v no reason to believe that the jury have been misled thereby, no reversal will be ordered. 18 Although there are decisions to the contrary 19 the prac- tice of reading the pleadings to the jury as part of the instructions is usually disapproved, 20 but such practice is also usually considered harmless error. 21 "The pleadings often contain irrelevant and immaterial allegations, and others, though material and pertinent, legal effect of a pleading is sufficient, though it does not set out evi- dentiary facts also pleaded. Mur- phey v. Virgin, 47 Neb. 692. 17 — Missouri, K. & T. B. Co. of Texas v. Swift, — Tex. Civ. App. — , 128 S. W. 450; Galveston, H. &' H. B. Co. v. Alberti, 47 Tex. Civ. App. 32. 18— Canfield v. Chicago, E. I.' & P. E. Co., 142 Iowa 658. Where the issues are stated in the language of the pleadings, and it is not made to appear that the jury were either misled or confused by the method pursued, the judgment cannot be reversed for the sole rea- son that the court stated the issues in the language of the pleadings. Smith v. Columbus Buggy Co., 40 Utah 580, 123 Pac. 580. 19^The court may read the plead- ings so that the jury may know the real issues. Baltzer v. Chicago, M. & N. E. Co., 89 Wis. 257. Blashfleld Vol. 1—14 \Ct is not error for the court in charging the jury to read the orig- inal petition and the amended peti- tion, where such amended petition worked a dismissal of the case as to one defendant, and the original petition was amended in several other material parts, it appearing that the court read both the stricken and substituted amend- ments and both of which were in the jury room when they considered and made their verdict. Jackson v. Sea- board Air Line Ey., 140 Ga. 277. 20— Savino v. Griffin Wheel Co., 118 Minn. 290. 21 — While the practice of copying a complaint including the caption and signature of counsel in an in- struction should not be encouraged, a reversal will not be ordered where an appellant was not harmed there- by. Lvansville Gas & Electric Light Co. v. Eobertson, — Ind. — , 100 N. E. 689. 210 Instructions to Jtjeies. [§91 which find no support in "the evidence. By reading these matters to them, the jurors are likely to be confused. ' ' 22 § 92. Referring jury to pleading. The determination of what issues are raised by the plead- ings is a question of law for the court, and it is usually held that the court must instruct the jury as to the issues to be tried, and not leave the question to the jury, as by referring them to the pleadings. 23 Such practice has been repeatedly disapproved 24 and requested instructions which refer the jury to the pleadings may and should be refused. 25 Instructions should refer the jury to the evidence and not 22— Savino v. Griffin Wheel Co., 118 Minn. 290. 23 — Illinois. Latham v. Cleveland, C, C. & St. L. By. Co., 179 111. App. 324. Iowa. Stephens v. Brill, 159 Iowa 620; Keatley v. Illinois Cent. Ry. Co., 94 Iowa 685; Gorman v. Minne- apolis & St. L. Ey. Co., 78 Iowa 509; Burns v. Oliphant, 78 Iowa 456; Lindsay v. City of Des Moines, 68 Iowa 368; Hollis v. State Ins. Co., 65 Iowa 454; Bryan v. Chicago, E. I. & P. Ey. Co., 63 Iowa 464; Porter v. Knight, 63 Iowa 365;. Hempstead v. City of Des Moines, 52 Iowa 303; Little v. McGuire, 43 Iowa 450. Kansas. Myer v. Moon, 45 Kan. 580, 26 Pae. 40. Kentucky. Tipton v. Triplett, 1 Mete. (Ky.) 570. Michigan. Wilbur v. Stoepel, 82 Mich. 344, 21 Am. St. Eep. 568. Missouri. Blackmore v. Missouri Pac. Ey. Co., 162 Mo. 455; Dassler v. Wisley, 32 Mo. 498; Birch Tree State Bank v. Dowler, 163 Mo. App. 65; Fleischmann v. . Miller, 38 Mo. App. 177; Procter v. Loomis, 35 Mo. App. 482; Gessley v. Missouri Pac. Ey. Co., 26 Mo. App. 156; Grant v. Hannibal & St. J. Ey. Co., 25 Mo. App. 227. Nebraska. Sioux City & Pac. E. Co. v. Pinlayson, 16 Neb. 578, 49 Am. Eep. 724n. North Carolina. Faircloth v. Isler, 75 N. C. 551. Tennessee.- East Tennessee, V. & G. Ey. Co. v. Lee, 90 Tenn. 570. It is never permissible to refer the jury to the pleadings to ascer- tain what the issues are, but it is the duty of the court to tell the jury what facts must be found by them to be true to warrant a ver- dict. Birch Tree State Bank v. Dowler, 163 Mo. App. 65. 24 — Schlauder v. Chicago & S. Traction Co., 253 HI. 154; Waschow v. Kelly Coal Co., 245 111. 516; Krieger v. Aurora, E. & C. E. Co., 242 111. 544; Freeman v. McElroy, — Tex. Civ. App. — , 149 S. W. 428. A charge requiring an examination by the jury of a pleading in a case is objectionable. Birmingham Bail- way, Light & Power Co. v. Adkins, 8 Ala. App. 555. 25 — Eosinski v. Burton, 163 111. App. 162; Smith v. Means, 170 Mo. App. 158. § 92] Stating Issues to Jury. 211 to the pleadings, 26 although the view has been presented that, where the declaration contains a full statement of the facts, no error is committed in referring the jury to the declaration for information with regard to such' facts, and in telling the jury that they must find the facts "in manner and form as charged in the declaration. ' ' 27 Where the pleadings are short and unambiguous, it is not error to refer to them in the instructions without otherwise stating the issues, 28 and for the purpose of conciseness of expression and description, the court may refer to the pleadings, though of course the greatest care must be exer- cised not to assume the existence of any controverted fact to which the description may pertain, 29 though, as already stated, where the pleadings are voluminous and involved, it is the better practice to instruct as to the substance of the issues. 30 It is not error to refer to the pleadings merely to shorten the instructions, where the essential questions in the case are apparent from the instructions. 31 Ordinarily the practice of referring the jury to the plead- ings to determine the issues does not warrant reversal, 32 26 — Small v. Polar Wave Ice & 31— Corrister v. Kansas City, St. ,T. Fuel Co., 179 Mo. App. 456. & C. B. E. Co., 25 Mo. App. 619. 27 — North Chicago City Ey. Co. A reference may be made to the v. Gastka, 27 111. App. 518, aff 'd 128 petition for a fuller statement of 111. 613, 4 L. E. A. 481; Sturgeon v. the items of plaintiff's claim. Lan- Sturgeon, 4 Ind. App. 232. ning v. Chicago, B. & Q. Ey. Co., It is not error to refer to the 68 Iowa 502. declaration in instructions to deter- 32— Wasehow v. Kelly Coal Co., mine what negligence was charged. 245 111. 516; Schillinger Bros. Co. v. Latham v. Cleveland, C, C. & St. L. Smith, 225 111. 74, aff 'g 128 111. App. Ey. Co., 179 111. App. 324. 30; Freeze v. Harris, 162 111. App. 28— Graybill v. Chicago, M. & St. 118. P. Ey. Co., 112 Iowa 738; Crawford It has been held that in a charge v. Nolan, 72 Iowa 673. on contributory negligence, a direct 29 — Myer v. Moon, 45 Kan. 580, reference to the pleadings to ascer- 26 Pac. 40; Britton v. City of St. tain the nature of defenses is not Louis, 120 Mo. 437; Corrister v. Kan- reversible error. Hoyt v. Chicago sas City, St. J. & C. B. Ey. Co., 25 City Ey. Co., 166 111. App. 361; Free- Mo. App. 619. man v. McElroy, — Tex. Civ. App. 30— Woodruff v. Hensley, 26 Ind. — , 149 S. W. 428. App. 592. While it is not error to refer the 212 Instbuctions to Juries. [§92 although it has been suggested that where the pleadings referred to are so involved and technical as to render it doubtful whether the jury could clearly understand the issues presented, the charge referring to the same for issues of fact would require a reversal. 33 In determining whether the jury was misled, the instruc- tions are to be considered as a whole. 34 "Where the pleadings are stated or referred to with the assent of the parties, the error, if any, is waived. 35 . § 93. Illustrations of rule. The general rule that the court should not refer the jury to the pleadings may be illustrated by cases wherein it was held error to submit to the jury the question whether the statute of limitations was pleaded or not, 36 or to give an instruction which, although not a copy of the pleadings, contained every detail, submitted issues not in dispute, and failed to specify the issues about which there was contro-. versy. 37 So, in an action for personal injuries, it is erroneous to instruct as follows: "These wrongs and injuries are set jury to the pleadings to determine that, in such case, the substance of the issues, it is the better practice *the issue should be stated. not to do so. Clouser v. Euckman, 34 — Canfield v. 'Chicago, R. I. & 104 Ind. 588; Ohio &'M. Ey. Co. v. P. E. Co., 142 Iowa 658. Smith, 5 Ind. App. 560; Te,xas & Where two answers contained Pac. Ey. Co. v. Tankersley, 63 Tex. pleas of contributory negligence 57. which were not involved or techni- Where the trial court does not cal, and the charges as a whole fairly state the issues to the jury other- submitted the issues, it was not error wise than by copying the pleadings warranting reversal to refer to the into the charge, the supreme court, pleadings. Preeman v. McElroy, — though condemning the practice, and Tex. Civ. App. — , 149 8. W. 428. recommending a different method on 35 — Burns v. Oliphant, 78 Iowa a new trial, will not reverse on this 456. See also Sprague v. Atlee, 81 ground alone. McDonald v. Bice, Iowa 1. 113 Iowa 44. . 36— Bradshaw v. Mayfield, 24 Tex. 33— Bering Mfg. Co. v. Pemelat, 482. 35 Tex. Civ. App. 36; Woodruff v. 37 — Erb v. German-American Ins. Hensley, 26 Ind. App. 592, holding Co., 112 Iowa 357. § 93] Stating Issues to Juky. 213 out in plaintiff's declaration, which you will have out with you, and which you will read. In the defendant's plea, * * * which you will read, these wrongs and injuries are denied. * * * These pleadings form the issue which you * ■* * were sworn to well and truly try." 38 Where there is no statement of the issues in any part of the charge, and the acts of negligence charged in the peti- tion are such that no proper presentation of the case to the jury could have been made without a plain and clear statement of the issues, telling the jury to turn to these papers for the particular statement of fact upon which the plaintiff must recover, if he is entitled to recover at all, under the evidence and the instructions in this case, is prejudicial error. 39 On the other hand, it has been held not erroneous, as referring the jury to the pleadings for the issues to state: "That upon the issue of contributory negligence of plain- tiff, raised by defendant's answer, the burden of proof is upon defendant. ' ' 40 And in an action for damages to property by fire, caused by sparks emitted from a locomotive, an instruction refer- ring to the property destroyed as that mentioned in the petition is not erroneous as referring the jury to the plead- ings. 41 In an action to recover for injuries received because of careless drivings the expression, "in direct consequence of 38 — East Tennessee, V. & G. By. neous for failure to explain the facts Go. v. Lee, 90 Tenn. 570. from which the conclusion of the 39 — Keatley v. Illinois Cent. By. defendant's liability was to be Co., 94 Iowa 685. But in Chicago drawn, as it was sufficient to refer & A. E. Co. v. Harrington, 90 111. to the declaration in which the facts App. 638, aff ' d 192 111. 9, it was held necessary to make out plaintiff's that an instruction to the effect that, case were stated, if ■ the jury believed from the evi- 40 — Sherwood v. Grand Ave. Ey. dence that the injury complained of Co., 132 Mo. 339. resulted from defendant 's negligence, 41 — Big Eiver Lead Co. v. St. as charged in the declaration, the Louis, I. M. & S. E. Co., 123 Mo. defendant was liable, was not erro- App. 394. 214 . Instructions to Juries. [§93 the acts herein complained of," is not objectionable as requiring a reference to the petition to find the issues to be determined, such expression referring to acts complained of, and mentioned already in the instructions. 42 In an action against a city and a contractor for negli- gently leaving an excavation open in the street, an instruc- tion which says that, if the jury ' ' believe from the evidence that the excavation mentioned in plaintiff's petition was made by defendant, * * * and was made in the alley, in the petition mentioned, * * * they will find," etc., cannot be objected to on the ground that it refers the jury to the petition to find the issues, the excavation being a con- ceded fact in the case. The reference to the petition is for the purpose of description merely. 43 An introductory statement of the allegation of a plead- ing, though of unnebessary length, is not error. 44 In stating the plaintiff's contentions, the court may properly call the attention of the jury to any allegations of the petition which have not been demurred to or stricken out, and which are supported by evidence ; 45 but merely reading the pleadings to the jury, without including them in the charge by copy, is objectionable as, in effect, partly instructing the jury orally. 46 Where the court fully and clearly states the issues to the jury, and what it is necessary for the plaintiff to prove in order to recover, it is not error for the court to also read the pleadings to the jury, and incorporate them in the instruction. 47 42 — Taylor v. Scherpe & Koken 46 — Hall v. Carter, 74 Iowa 364. Architectural Iron Co., 133 Mo. 349. 47— Lake Shore & M. S. Ry. Co. v. 43— Britton v. City of St. Louis, Mcintosh, 140 Ind. 261; Jenks y. 120 Mo. 437. Lansing Lumber Co., 97 Iowa 342; 44 — Atchison, T. & S. F. Ry. Co. Morrison v. Burlington, C. R. & N. v. Cuniffe. (Tex. Civ. App.), 57 S. By. Co., 84 Iowa. 663; Probert v. W. 692. Anderson, 77 Iowa 60; Helt v. Smith, 45 — Macon Consolidated St. R. Co. 74 Iowa 667; Dorr v. Simerson, 73 v. Barnes, 113 Ga. 212. Iowa 89. §94] Stating Issues to Juey. 215 § 94. Erroneous statement of issues. It is error to give an instruction misstating the issues of a case, 48 and such misstatement is ground for reversal when the instruction tends to confuse or mislead the jury. 49 It is reversible error for the court to submit a case to the jury upon a theory entirely different from that claimed in the declaration, and upon which the case has been tried, 50 but a charge cannot be attacked as erroneous for miscon- struing a pleading if such misconstruction cannot affect the substantial rights of the party objecting. 51 48 — Harley v. Merrill Brick Co., 83 Iowa 73; Fuhs v. Osweiler, 59 Iowa 431; Stafford v. City of Oska- loosa, 57 Iowa 478; Seed v. Gould, 93 Mich. 359; Marquette, H. & 0. B. Co. v. Marcott, 41 Mich. 433; Hall v: Woodin, 35 Mich. 67; Klosterman v. Olcott, 27 Neb. 685; Galloway v. Hicks, 26 Neb. 531; Howell ^v. Wil- cox & Gibbs Sew. Mach. Co., 12 Neb. 177. Where one of two defendants in- troduces an ordinance over objection of the other and no recovery is sought for a violation thereof, an instruction as to no recovery for the violation is improper. Sehrt v. Sampsell, 167 111. App. 628. 49 — Stouffer v. Stoy, 46 Ind. App. 180; Lower v. Marceline Coal & Min- ing Co., 142 Mo. App. 351; Howell v. Wilcox & Gibbs Sew. Mach. Co., 12 Neb. 177. Where the court, in instructing the jury as to the issues in the case, stated them more broadly than was warranted by the instrument which was the foundation of the action, it was held reversible error. Klos- terman v. Olcott, 27 Neb. 685. If no prejudice results from a misstatement of the issues, it is not ground for reversal. Stark v. Wil- letts, 8 Kan. 203. The fact that the court, in stating the issues to the jury, confounds the action of trespass with trespass on the case, will not warrant a reversal. Brown v. Hendrickson, 69 Iowa 749. Where a locomotive engineer is charged with negligence in backing up his engine too fast, and the in- struction refers to this charge as being "that the parties in charge of the engine moved the train at an unusual fast rate of speed," such instruction is not erroneous in not properly stating the plaintiff's cause of action. Beems v. Chicago, E. I. & P. E. Co., 58 Iowa 150. 50— Eeed v. Gould, 93 Mich. 359. Where the evidence tends to show a promise, by way of guaranty, to make good the obligation of others, it is error to submit the case to the jury as one of an absolute and orig- inal promise to pay. Hall v. Woodin, 35 Mich. 67. . 51 — Stark v. Willetts, 8 Kan. 203. In ejectment, where defendant's answer admits plaintiff's title, thus, prima facie at least, admitting plain- tiff 's right to possession, an instruc- tion that defendant admitted plain- tiff's right to possession is not error, in the absence of any attempt on the part of defendant to show that plain- tiff did not have such right of ,216 Instructions to Juries. [§94 Where an instruction submits" one question which did not arise under the pleadings, but the issues were properly submitted in other instructions, and it is clear that the question on which the rights of the parties turn was before the jury, the judgment should not be reversed because of error in the one instruction. 52 § 95. Incomplete statement of issues. The issues should be stated to the jury fully, so that such jury may intelligently pass upon the case, 53 thus it is erroneous to omit reference to a material issue in the case, as, for instance, the issue of contributory negligence, 54 and an instruction which purports to enumerate all the material elements which a party must prove in order to maintain his action or support his defense must be correct and 'com- plete, and, if any essential element is omitted, the error is ground for reversal. 55 Such error has an obvious tendency to mislead the jury. It has been held, however, that an incomplete statement of the issues is not ground for reversal, unless the party com- plaining requested an instruction correctly stating the issues. 56 § 96. Withdrawal of issues. Issues raised by the pleadings which are not. supported by the evidence may properly be withdrawn from the jury's possession. Stark v. Willetts, 8 8 Ind. App. 330; Kentucky & I. Kan. 203. Bridge Co. v. Eastman, 7 Ind. App. 52 — Newton v. Ritchie, 75 Iowa 91. 514; Gamble v. Mullin, 74 Iowa 99; 53 — McDivitt v. Des Moines City Hill v. Aultman, 68 Iowa 630; Pot- R. Co., 141 Iowa 689; Potter v. Chi- ter v. Chicago, R. I. & P. R. Co., 46 cago, R. I. & P. R. Co., 46 Iowa 399; Iowa 399; State v. Brainard, 25 Iowa Rand v. Butte Electric R. Co., 40 .572. Mont. 398, 107 Pac. 87. 56— Sioux City & Pac. R. Co. v. 54 — Gamble v. Mullin, 74 Iowa 99. Finlayson, i6 Neb. 578, 49 Am. Rep. 55 — Jackson School Tp. v. Shera, 724n. § 96] Stating Issues to Jury. 217 consideration, 57 and when an issue is abandoned or con- ceded, it should not be submitted. 58 The court may and should refuse to instruct upon issues which have been withdrawn or stricken out. 59 If the court declines to submit an issue to the jury upon which evidence has been introduced, the evidence bearing upon that issue should be taken from the jury, and it is error, in such case, to instruct that the facts concerning that matter may properly be considered in determining the issues that are submitted; 60 but where an issue raised by the petition is not submitted to the jury, a refusal to with- draw testimony as to such issue is not erroneous, where the jury are instructed to consider only the issues submitted. 01 In this connection it has been held that a paragraph in- structing the jury that all other issues raised by the plead- . ings other than those submitted are withdrawn from their consideration, should not be included, as the tendency may' be to mislead the jury. 62 57 — Colorado Midland E. Co. v. Massachusetts. Bugbee v. Kend- Edwards, 24 Colo. App. 350, 134 Pac. ricken, 132 Mass. "349. 248; Whalen v. Chicago, 'B. I. & P. Virginia. Pry v. Leslie, 87 Va. Ey. Co., 75 Iowa 563; Dupuy v. 269. Burkitt, 78 Tex. .338. 60 — Hammer v. Chicago, E. I. & 58 — Brown v. Drainage Dist. No. P. Ey. Co., 70 Iowa 623. 48, 163 Iowa 290; Canfield v. Chi- 61--Gulf, C. & S. P. Ey. Co. v. cago, E. I. & P. E. Co., 142 Iowa Shieder (Tex. Civ. App.), 26 S. W. 658; Latman v. Douglas & Co., 149 509 - Iowa 699; Tathwell v. City of Cedar Where two or more grounds of Eapids, 114 Iowa 180; Erb v. Ger- negligence are alleged and the court man- American Ins. Co., 112 Iowa submits the case to the J ur 7 only „__ upon one of these grounds the same 59— Alabama. Western U. Tel. Co. v. Boteler, 183 Ala. 457. constitutes a sufficient withdrawal of the other ground and the defend- , , ,. ant is not entitled to any special Georgia. Stanford v. Murphy, 63 c]mrge ^.^ ^ ^ ^ ^.^ Ga. 410. See also, Macon Consoli- drawn _ gt _ Louis Southwestern Ry dated St. E. Co. v. Barnes, 113 Ga. Co _ of Texas v Martin> _ Tex. Civ. 212 - • App. — , 161 S. W. 405. Iowa. New Haven Lumber Co. v. 62 — Missouri, K. & T. E. Co. v. Eaymond, 76 Iowa 225. Graves, 57 Tex. Civ. App. 395. CHAPTER X. Ignobing Evidence, Issues, Theories, and Defenses. § 97. Ignoring issues, theories, and defenses. § 98. Same — Illustrations. § 99. Ignoring evidence. § 100. Same — Instructions held erroneous, as ignoring evidence or with- drawing it from consideration. § 101. Same — Instructions held not erroneous, as ignoring evidence or with- drawing it -from consideration. § 97. Ignoring issues, theories, and defenses. Instructions to the jury should not ignore or exclude any of the issues, theories, or defenses presented by the plead- ings and the evidence, 1 even though the evidence in support 1 — Alabama,. Brown: & Flowers v. Central of Georgia B. Co., 185 Ala. 659; Bloch v. Edwards, 116 Ala. 90. Arkansas. Western Coal & Min- ing Co. v. Moore, 96 Ark. 206. California. Remy v. Olds, 4 Cal. TJnrep. 240, 34 Pao, 216. Georgia. Klink v. Boland, 72 Ga. 485. Illinois. Mengelkamp v. Consol. Coal Co., 259 111. 305; Cromer v. Bor- ders Coal Co., 246 111. 451; Costly, v. McGowan, 174 111. 76; Simpson Brick-Press Co. v. Wormley, 166 HI. 383; aff'g 61 111. App. 460; McCol- lom v. Indianapolis & St. L. E. Co., 94 111. 534; Volk v. Eoche, 70 111. 297; Chicago & N. W. Ey. Co. v. Clark, 70 111. 276; Flennor v. Cleve- land, C, C. & St. L. Ey. Co., 163 111. App. 536; Union Stock Yard & Transit Co. v. Goodman, 91 111. App. 426; Clark v. Smith, 87 111. App. 409. ( Indiana. Burke v. State, 72 Ind. 392; Terry v. Shively, 64 Ind. 106; Longnecker v. State, 22 Ind. 247. Maryland. Eureka Fertilizer Co. of Cecil County v. Baltimore Copper, Smelting & Eolling Co., 78 Md. 179. Michigan. Miller v. Miller, 97 Mich. 151; Dikeman v. Arnold, 71 Mich. 656; Wildey v. Crane, 69 Mich. 17; People v. Cummins, 47 Mich. 334. Minnesota. De Foe v. St. Paul City Ey. Co., 65 Minn. 319. Missouri. Condon v. Missouri Pac. Ey. Co., 78 Mo. 567; Turner v. Loler, 34 Mo. 461; Jobes v. Wilson, 140 Mo. App. 281; Evers v. Shumaker, 57 Mo. App. 454; Walter A. Wood Mow- ing & Eeaping Maeh. Co. v. Bobbst, 56 Mo. App. 427; Brown v. McCor- mick, 23 Mo. App. 181. Montana. O'Brien v. Corra-Eock 218) §97] Ignoring Evidence and Issues. 219 thereof is very slight; 2 and whether the court believes the evidence or not, the issues must be presented to the jury. 3 If there is evidence on a material issue, it is error to instruct that it scarcely requires attention, the defendant having made no contest thereon, 4 and where the right of action or defense rests upon several questions of fact, an Island Min. Co., 40 Mont. 212, 105 Pac. 724. Nebraska. Rising v. Nash, 48 Neb. 597. Oregon. Fiore v. Ladd, 25 Ore. 423, 36 Pac. 572; Holmes v. Whita- ker, 23 Ore. 319, 31 Pac. 705; Kear- ney v. Snodgrass, 10 Ore. 181. Pennsylvania. Hayes v. Pennsyl- vania E. Co., 195 Pa. 184; Hall v. Vanderpool, 156 Pa. 152. South Carolina. Kennedy v. Ken- nedy, 86 S. C. 483. Tennessee. Nashville & C. R. Co. v. Conk, 11 Heisk. (Tenn.) 575. Texas. Wootters v. Hale, 83 Tex. 563; Island City Boating & Athletic Ass'n v. New York & T. Steamship Co., 80 Tex. 375; Cannon v. Cannon, 66 Tex. 682; McGehee v. Lane, 34 Tex. 390; Smithwick v. Andrews, 24 Tex. 488; Park v. Pyle, — Tex. Civ. App. — , 157 S. W. 445; Gibson & Cunningham v. Purifoy, 56 Tex. Civ. App. 379; Dorsey Printing Co. v. Gainesville Cotton Seed Oil Mill & Gin Co., 25 Tex. Civ. App. 456; Epp- stein v. Thomas, 16 Tex. Civ. App. 619; Gulf, C. & S. F. Ry. Co. v. Kiz- ziah, 4 Tex. Civ. App. 356; Banner Distilling Co. v. Dieter (Tex. Civ. App.), 60 ' S. W. 798; P. J. Willis & Bro. v. Sims' Heirs. (Tex. Civ. App.), 57 S. W. 325; Taylor v. State (Tex. Cr. App.), 63 S. W. 330. Virginia. Atlantic C. L. R. Co. v. Caple's Adm'x, 110 Va. 514. Washington. Dignan v. Spurr, 3 Wash. 309, 28 Pac. 529. West Virginia. Franklin v. T. H. Lilly Lumber Co., 66 W. Va. 164; Maxwell v. Kent, 49 W. Va. 542; McVey v. St. Clair Co., 49 W. Va. 412. United States. Adams v. Roberts, 2 How. (U. S.) 486, 11 L. Ed. 349. Theories of recovery relied upon in the declaration which the evi- dence may sustain, must not be ex- cluded. Flennor v. Cleveland, C, C. & St. L. R. Co,, 163 111. App. 536. A charge excluding a material is- sue of defense is reversible error. Gibson & Cunningham v. Purifoy, 56 Tex. Civ. App. 379. Instruction ignoring issue held prejudicial error. Park v. Pyle, — Tex. Civ. App. — , 157 S. W. 445. An instruction given at the re- quest of the defendant and covering only a part of the theory of the defense is objectionable because too narrow, but it is not ground for reversal wnere it is manifest that it did not operate to the prejudice of the plaintiff. Maxwell v. Kent, 49 W. Va. 542. 2 — Providence Gold Min. Co. v. Thompson, 7 Ariz. 69, 60 Pac. 874; McGown v. International & G. N. Ry. Co., 85 Tex. 289; Morgan v. State, 62 Tex. Cr. App. 39. 3 — Morgan v. State, 62 Tex. Cr. App. 39. 4— Barker v. State, 126 Ala. 83; Republican Valley R. Co. v. Fink, 18 Neb. 89. 220 Instruction's to Jueies. [§97 instruction making the question turn upon the finding as to one point, and ignoring the others, is erroneous, and may be refused. 5 It is also error to submit the case entirely from the stand- point of one party, by calling the attention of the jury to the claims and evidence of such party, without adverting to the claims and evidence of his adversary. 6 It has been held, however, that if the court fails to sub- mit defensive matter to the jury, it is the duty of the defense to request same, and failing to do so the case will not be reversed on that account. 7 A refusal of instructions defective in this regard is, of course, proper, and error can in no case be predicated of such refusal. 8 5 — Alabama. Holmes v. State, 23 Ala. 17; Davis Wagon Co. v. Cannon (Ala.), 29 So. 841. California. Gallagher v. William- son, 23 Cal. 331, 83 Am. Dec. 114. Idaho. Deasy v. Thurman, 1 Idaho 779. Pennsylvania. Kennedy v. Forest Oil Co., 199 Pa. 644. West Virginia. McVey v. St. Clair Co., 49 W. Va. 412. 6 — Hayes v. Pennsylvania E. Co., 195 Pa. 184. 7 — Houston & T. C. B. Co. v. Cole- man, — Tex. Civ. App. — , 166 S. W. 685. See also, Chrystal v. Gerlach, 25 S. D. 128. 8 — Alabama. Davis Wagon Co. v. Cannon, 129 Ala. 301. Florida. Jacksonville Elec. Co. v. Sloan, 52 Fla. 257. Georgia. Southwestern E. Co. v. Singleton, 67 Ga. 306. Illinois. Chicago & N. W. E. Co. v. Clark, 70 111. 276. Maryland. Turner v. Ellicott, 9 Md. 52. Missouri. Condon v. Missouri Pac. Ey. Co., 78 Mo. 567; Henry v. Eas- sett, 75 Mo. 89; Martin v. Johnson, 23 Mo. App. 96. Nebraska. Fulton v. Eyan, 60 Neb. 9; Carruth v. Harris, 41 Neb. 789. New York. Leonard v. Brooklyn Heights E. Co., 57 App. Div. (N. Y.) 125. Oregon. Mitchell v. LaFollett, 38 Ore. 178, 63 Pac. 54; Krewson v. Purdom, 13 Ore. 563, 11 Pac. 281. Pennsylvania. Kennedy v. Forest Oil Co., 199 Pa. 644; Hall v. Vander- pool, 156 Pa. 152. ' South Carolina. Westbury v. Sim- mons, 57 S. C. 467. Texas. Pope v. Eiggs (Tex. Civ. App.), 43 S. W. 306; Gulf, C. & S. F. Ey. Co. v. Kizziah, 4 Tex. Civ. App. 356. Wisconsin. Novak v. Nordberg Mfg. Co., 141 Wis. 298. It is proper to refuse instructions, as misleading, when they are based on the theory of a party as to facts in evidence, and ignore the legal effect of other facts applicable to the relation and rights of the parties. § 97] Ignoring Evidence and Issues. 221 However, an instruction ignoring a theory or defense is not erroneous, where there is no evidence to sustain the theory or defense ignored, 9 although remarks of counsel in argument may sometimes require an instruction upon questions not in issue. 10 Instructions on matters about which there is no real disr pute are properly refused, 11 and it has been held not a ground of reversal that the court omitted, in commenting on the facts, to mention facts favorable to the unsuccessful party, where he told the jury that they were to determine all issues of fact, and that the comments of the court were made for the purpose of illustrating the statements of law, and were not to control the jury. 12 It is not necessary that all issues, theories, and defenses be presented in one instruction. An instruction containing a correct proposition of law in regard to one theory, issue, or defense is not erroneous, where the other issues, theories, or defenses are presented in other instructions. 13 Jacksonville Elec. Co. v. Sloan, 52 Boyd, 32 Mo. App. 399; Parker v. Fla. 257. Chancellor, 78 Tex. 524; Underwood 9 — Scott v. Parlin & Orendorff Co., v. Coolgrove, 59 Tex. 164; Smithwick 245 111. 460; E. A. Moore Furniture v. Andrews, 24 Tex. 488; P. J. Willis Co. v. W. & J. Sloane, 166 III. 457, & Bro. v. Sims' Heirs (Tex. Civ. aff'g 64 111. App. 581; Leslie v. Joliet App.), 57 S. W. 325; Oliver v. Moore Bridge & Iron Co., 149 111. App. 210; (Tex. Civ. App.), 43 S. W. 812; Jack- Longnecker v. State, 22 Ind. 247; son v. 'Com., 96 Va. 107. Hilburn v. Phcenix Ins. Co., 140 Mo. 10 — See Missouri, K. & T. Ey. Co. App. 355; Gulf, C. & S. F. Ey. Co. v. Nail, 24 Tex. Civ. App. 114, where, v. Dorsey, 66 Tex. 148. , however, the particular remark was It is error to leave it to the Jury held not to call for an instruction to determine whether there is any that exemplary damages could not evidence to support a particular is- be allowed, the question of exem- sue. Central of Georgia Ey. Co. v. plary damages not being in issue. Crane, — Ala. — , 65 So. 866; David 11 — Cooke v. Plaisted, 176 Mass. v. Tucker, 140 Ga. 240; McAllister v. 374. Ferguson, 50 App. Div. (N. Y.) 529. 12— Lowry v. Mt. Adams & E. P. A refusal to instruct the jury on Incline Plane Ey. Co., 68 Fed. 827. a theory, issue, or defense which 13 — Fessenden v. Doane, 89 111. there is evidence tending to support App. 229, aff'd 188 111. 228; State v. is erroneous. De Foe v. St. Paul City Hope, 102 Mo. 410. Ey. Co., 65 Minn. 319; Kraft v. Mc- 222 Instructions to Juries. [§97 Also, where an issue is submitted in several paragraphs of a charge, it is immaterial that the issue is not referred to in other paragraphs, as the charge must be construed as a whole. 14 § 98. Same — Illustrations. In an action for breach of contract, an instruction that the jury should give plaintiff damages if defendant did not perform withdraws from the jury the question of perform- ance by plaintiff and is erroneous. 15 An instruction to find for the defendant unless they should find from the evidence that a good consideration passed from the plaintiff to the defendant, and the defend- ant signed a memorandum in writing, charging himself with the debt of another, there being evidence that def end- ant 's undertaking was an original, and not a collateral, agreement is erroneous. 16 In an action on a note, where ' ' defendant pleaded non est factum under oath, arid also an unsworn denial, of any indebtedness to the plaintiff," an instruction telling the jury that the only issue before them was the execution of the note was erroneous, 17 and in a similar action on a note, "with a condition that the same was subject to all pay- ments made to the payee, as a partner of the maker, and not charged upon the books of the firm, where such pay- ments were pleaded, and also a plea of set-off, an instruc- tion that if the matters of defense under the condition in the note are not proved, the jury should find for the plain- tiff," was erroneous, since such instruction ignores "the defense and proof under the plea of set-off." 18 In an action on a note, where pro6f is offered tending to establish two grounds of defense, either of which were 14— Missouri, K. & T. Ry. Co. of 16— Clark v. Smith, 87 111. App! Texas v. Stogner, — Tex. Civ. App. 409. — , 163 S. W. 319. 17— MeGehee v. Lane, 34 Tex. 390. 15 — Bemy v. Olds, 4 Cal. Unrep. 18— Volk v. Roche, 70 111. 297. 240, 34.Pac. 216. §98] Ignoring Evidence and Issues. 223 available, an instruction narrowing the defense to a single point is erroneous. 19 . In negligence cases it has been held error to give instruc- tions which ignored issues supported by the evidence, such as the last clear chance doctrine, 20 the issue of vice prin- cipal, 21 or the defenses of assumed risk 22 and contributory negligence. 23 In an action for injuries sustained in a collision with a street car, an instruction requiring a verdict for plaintiff if the accident occurred at a certain place, and the car was not under such complete control that it could be immedi- ately stopped by the motorman, was erroneous as eliminat- ing the issues of proximate cause, contributory negligence, and injury. 24 In an action for injuries caused by rock flying during 19 — Anderson v. Norvill, 10 111. App. 240. 20— Watts v. Chicago, E. & I. E. Co., — Ind. App. — , 104 N. E. 42. 21 — Hugo, Schmeltzer & Co. v. Paiz, — Tex. Civ. App. — , 128 S. W. 912. 22 — Instructions ignoring the is- sues of assumed risk and contribu- tory negligence, when pleaded and proved, should not be given. Law- son v. Hamilton Compress Co., — Tex. Civ. App. — , 162 S. W. 1023. 23 — Iowa. Neel v. Smith, — Iowa — , 147 N. W. 183. Kansas. Jones v. Joplin & P. B. Co., 91 Kan. 282, 137 Pae. 796. Mississippi. Yazoo & M. Val. E. Co. v. Bruce, 98 Miss. 727. Missouri. Tinkle v. St. Louis & S. F. E. Co., 212 Mo. 445; Hawkins v. Missouri Pac. E. Co., 182 Mo. App. 323. Texas. Carter v. South Texas Lumber Yards, — Tex. Civ. App. — , 160 S. W. 626; Ft. Worth & D. C. E. Co. v. Wininger, — Tex. Civ. App. — , 159 S. W. 881. Virginia. -Atlantic C. L. E. Co. v. Caple 's Adm 'x, 110 Va. 51-1 West Virginia. McVey v. St. Clair Co., 49 W. Va. 412. Charge ignoring contributory neg- ligence, held properly refused. Car- ter v. South Texas Lumber Yards, — Tex. Civ. App. — , 160 S. W. 626. Instruction ignoring contributory negligence held not erroneous when the instructions were considered as a whole. Neel v. Smith, — Iowa — , 147 N. W. 183. In a negligence case, an instruc- tion, which purports to cover the . whole case and directs a verdict, is erroneous if it ignores the issue of contributory negligence, where the evidence tends to show negligence on the part of the one injured, and such issue is not presented by other instructions. Hawkins v. Missouri Pae. E. Co., 182 Mo. App. 323. 24 — Feille v. San Antonio Trac- tion Co., 48 Tex. Civ. App. 541. 224 , Instructions to Juries. [§98 blasting operations, an instruction ignoring the issue as to whether plaintiff had warning of the blast and could have protected himself, did not correctly submit the law. 25 In an action for the death of a driver of mules, while stringing an electric wire, caused by the pulling out of a clevis, when the driver failed to receive a signal to stop pulling the wire, an instruction ignoring a ground of lia- bility based upon the failure of defendant to furnish and properly distribute a sufficient number of men for the pur- pose of transmitting signals, was erroneous. 26 In an action for injuries to a passenger caused by derail- ment of a train and explosion of a car load of dynamite, an instruction confining the issue to the condition of the axle of the powder car, and ignoring ott^er acts of negligence, such as improperly loading the car ahead of the powder car, so as to allow slabs to fall and derail the powder car, was properly refused. 27 In an action for damages caused by a collision of railway cars with an automobile, an instruction as to striking the automobile with a car while switching was erroneous when it omitted to submit whether the switching and striking was negligently done, as charged in the petition. 28 In an action for injuries sustained at a railroad crossing, a requested instruction ignoring the question of negligence per se in the failure to ring the bell, and a speed ordinance, was properly refused. 29 In an action for injuries to a passenger while alighting from a street car, an instruction ignoring acts of negligence alleged by the plaintiff and supported by the evidence, which acts the jury was warranted in finding were concur- 25 — Lexington & E. E. Co. v. California, 14 Cal. App. 180, 111 Pac. Fields, 152 Ky. 19, 4 N. C. C. A. 19. 519. 26 — Stone & Webster Engineering 28 — Botts v. Chicago, B. & Q. E. Corp. v. Goodman, — Tex. Civ. App. Co., 180 Mo. App. 368. — , 167 S. W. 10. 29— Cleveland, C, C. & St. L. E. 27— Eoberts v. Sierra E. Co. of Co. v. Lynn, 177 Ind. 311. § 99] Ignoring Evidence and Issues. 225 rent causes with the starting of the car, proximately caus- ing the injury, was properly refused. 30 In an action for injuries to a servant, an instruction ignoring the issue whether or not plaintiff negligently or intentionally put his hand under the knife of a " veneering machine" or clipper, was properly refused. 81 In an action for injuries to a brakeman caused by the fall of a defective platform, an instruction ignoring the issue of negligence in the construction of the platform was properly refused. 32 On a trial for burglary, an instruction ignoring a theory of the defendant that he did not steal the pistol, but bought it from the owner, was erroneous, there being evidence to support such theory^ 33 On a trial for assault and battery, instructions ignoring the question of retreat or freedom from fault in bringing on the difficulty, are properly refused, 34 and in an action for an assault and battery, 1 in which was filed a plea' of son assault demesne, an instruction withdrawing from the jury the consideration of the issue on that plea is erroneous. 35 An instruction that defendant '.'does not controvert the evidence for the state, " in a prosecution for carrying con- cealed weapons, where defendant testifies that the weapon carried was not concealed, is also erroneous. 36 § 99. ' Ignoring evidence. It has been noted that instructions should be applicable to and limited to the evidence adduced in the cause. 37 30— El Pago Elee. % Bj. Co. v. 33— Eobinson v. State, 71 Tex. Cr. Mebus, — Tex. Civ. App. — , 157 App. 561. S. W. 955. 34 — Blankenship v. State, — Ala. 31 — Bryson v. Moore, — Tex. Civ. App. — ; 65 So. 860. App. — , 157 S. W. 233. 35— Collins v. Waters, 54 111. 485. 32— Missouri, K. & T. Ey. Co. of 36— Barker v. State, 126 Ala. 83: Texas v. Eogers, — Tex. Civ. App. 37 — See ante, § 82. — , 128 S. W. 711; Missouri, K. & T. Ey. Co. of Texas v. Eogers, — Tex. Civ. App. — , 117 S. W. 914. Blashfield Vol. 1—15 226 Instructions to Juries. [§99 It is also the rule that the instructions must not ignore material evidence, or be drawn so as to exclude such evi- dence from the consideration of the jury. 38 •38 — Alabama. Southern R. Co. v. Weatberlow, 164 Ala. 151; Bloch v. Edwardsj 116 Ala. 90; Highland Ave. & B. R. Co. v. Sampson, 112 Ala. 425; Anniston Lime & Coal Co. v. Lewis, 107 Ala. 535; Williamson v. Tyson, 105 Ala; 644; Louisville & N. R. Co. v. Hurt, 101 Ala. 34; Marx v. Leinkauff, 93 Ala. 453; Wooten v. Fe'deral D. Co., — ^Ala. App. — , 62 So. 263. Arkansas. Arkansas Lumber & Contractors' Supply Co. v. Benson, 92 Ark. 392. California. Fox v. Stockton Com- bined Harvester & Agricultural Works, 83 Cal. 333, 23 Pac. 295; Gallagher v. Williamson, 23 Cal. 331, 83 Am. Dec. 114. Colorado. Venine v. Archibald, 3 Colo. 163. Connecticut. Charter v. Lane, 62 Conn. 121. Florida. Mims v. State, 42 Fla. 199; Florida Ry. & Nav. Co. v. Web- ster, 25 Fla. 394. Georgia. Wylly v. Gazan, 69 Ga. 507. Idaho. Deasey v. Thurman, 1 Idaho 775. Illinois. Mithen v. Jeffery, 259 111. 372; Elgin, J. & E. Ry. Co. v. Raymond, 148 111. 241, aff'g 47 111. App. 242; Phenix Ins. Co. v. La Pointe, 118 111. 384, aff'g 17 111. App. 248; Wooley v. Lyon, 117 111. 244; 57 Am. Rep. 867; Wabash, St. L. & P. Ry. Co. v. Rector, 104 111. 296; Thome v. McVeagh, 75 TIL 81; Prante v. Hartman, 168 111. App. 393; Ruch y. Aurora, E. & C. R. Co., 150 111. App. 329. And see cases cited post this note. Indiana. Prothero v. Citizens' St. Ry. Co., 134 Ind. 431; Dean v. State, 130 Ind. 237; Indianapolis Traction & Terminal Co. v. Miller, 40 Ind. App. 403. ' Iowa. Carpenter v. Campbell Automobile Co., 159 Iowa 52, 4 N. C. C. A. 1; Carruttrers v. Towne, 86 Iowa 318; State v. Meshek, 51 Iowa 308. Kentucky. Myers v. Sanders' Heirs, 7 Dana (Ky.), 509. Maryland..' Higgins v. Grace, 59 Md; 365. Massachusetts. McDonoughv. Mil- ler, 114 Mass. 94. Michigan. Sterling v. Callahan, 94 Mich. 536; People v. Marks, 90 Mich. 555; Kieldsen v. Wilson, 77 Mich. 45. Minnesota. Campbell v. Duluth & N. E. R. Co., Ill Minn. 410. Mississippi. Solomon v. City Com- press Co., 69 Miss. 319; Thrasher v. Gillespie, 52 Miss. 840. Missouri. Birtwhistle v. Wood- ward, 95 Mo. 113; Stbcker v. Green, 94 Mo. 280, 4 Am. St. Rep. 382n; Greer v. Parker, 85 Mo. 107; Jackson v. Bowles, 67 Mo. 609; Wyatt v. Citizens' Ry. Co., 62 Mo. 408; Jones v. Jones, 57 Mo. 138; Barada v. Blu- menthal, 20 Mo. 162; Hilburn v. Phoenix Ins. Co., 140 Mo. App. 355. Nebraska. Brown v. State, 9 Neb. 157. New Hampshire. Ordway v. Sanders, 58 N. H. 132. North Carolina. Meredith y. Cran- berry Coal & Iron Co., 99 N. C. 576. Pennsylvania. Peirson v. Duncan, 162 Pa. 187; Ott v. Oyer's Exec'x, 106 Pa. 7. §99] Ignoeing Evidence and Issues. 227 An instruction which selects a part of the evidence and calls the jury's attention to it, omitting other evidence that is entitled to be considered on the same question, is calcu- lated to mislead, 39 and it makes no difference how weak the evidence is on the point in issue. 40 It is safer to avoid grouping facts and charging with reference io them, but if a party requests a charge in that form presenting his theory of the evidence, as he has a right Texas. City of Houston v. Du- pree, — Tex. Civ. App. — , 129 S, W. 173; Missouri, K. & T. Ey. Co. v. Simmons, 12 Tex. Civ. App. 500; Gulf, C. & S. F. Ey. Co. v. Lankford, ■ 9 Tex. Civ. App. 593; Pitt v. Elser, 7 Tex. Civ. App. 47; Weis v. Ditt- man, 4 Tex. Civ. App. 35; Bryan Cotton-Seed Oil Mill v. Fuller (Tex. Civ. App.), 57 S. W. 924; Caraway v. Citizens' Nat. Bank of Weather- ford (Tex. Civ. App.), 29 S. W. 506. Vermont. Montgomery v. Com.; 98 Vt. 852; Ashley v. Hendee, 56 Vt. 209; Gordon v. Tabor, 5 Vt. 103. Virginia. Peek v. City of Hamp- ton, 115 Va. 855; Hash v. Common- wealth, 88 Va. 172. West Virginia. McCreery 's Adm 'x v. Ohio Eiver E. Co., 43 W. Va. 110; Thompson v. Douglass, 35 W. Va. 337; McMechen v. McMechen, 17 W. Va. 683, 41 Am. Eep. 682n. Wisconsin. Sherman v. Kreul, 42 Wis. 33; Phoenix Ins. Co. v. Sholea, 20 Wis. 35. United States. Eio Grande West- ern Ey. Co. v. Leak, 163 U. S. 280, 41 L. Ed. 160; Allison v. United States, 160 U. S. 203, 40 L. Ed. 395. Essential elements must not be ignored. Pittman v. Chicago & E. I. E. Co., 231 111. 581, aff 'g 135 111. App. 481; Cole v. City of East St. Louis, 158 111. App. 494; Plopper v. St. Louis & N. E. Ey. Co., 158 111. App. 196; Eanney v. Chicago & A. E. Co., 158 111. App. 104; Asplund v. Conklin Const. Co., 154 111-. App. 164; Har- mening v. Henrietta Coal Co., 149 111. App. 387; Mohr & Sons v. Martewiez, 139 111. App. 173, aff'd 236 111. 143; Chicago City Ey. ^Co. v. Gates, 135 111. App. 180; Harding v. Thuet, 124 111. App. 437; Muren Coal & Ice Co. v. Howell, 119 111. App. 209, aff'd 217 111. 190. It is error in an instruction to limit or confine the consideration of the jury to certain facts to the exclusion of others that are impor- tant. Indianapolis Traction & Ter- minal Co. v. Miller, 40 Ind. App. 403. 39— People v. Tielke, 259 111. 88. 40 — Evidence should not be with- drawn from the consideration of the jury, and an instruction which does so is calculated to mislead, and im- proper. Holmes v. State, 23 Ala. 17; Edgar v. McArn, 22 Ala. 796; Prit- chett v. Munroe, 22 Ala. 501; Provi- dence Gold-Min. Co. v. Thompson, 7 Ariz. 69, 60 Pac. 874; Mims v. State, 42 Pla. 199; Beale v. Hall, 22 Gai 431. If instructions in effect discard or ignore, and thereby induce the jury to discard or ignore, any material evidence, however weak, they are erroneous. Woodbury v. State, 69 Ala. 242; Gooden v. State, 55 Ala. 178. 228 Instructions to Juries. [§99 to do, the court should see that it does not eliminate a material fact. 41 Where a court instructs a jury upon what state of facts they must find a verdict for a party, the instruction should include all the facts in controversy material to the right of the plaintiff or the defense of the defendant. 42 Although the judge may lay down the law correctly in his general charge, yet if, in a specific subsequent charge, he places the case upon the existence of certain facts, on which alone it may not properly be made to turn, and the effect of this charge, if literally followed by the jury, is to with- draw from them the consideration of other facts which tend to disprove or materially qualify the facts upon which the charge is predicated, injury will be presumed from the error. 43 However, it has also been held that an instruction need not anticipate and negative defenses, 44 or embody evidence tending to establish an antagonistic theory, 45 and where instructions are incomplete, but the omission is supplied in other instructions given, this is sufficient to prevent a 41 — St. Louis, B. & M. R. Co. v. also, Turner v. Snyder, 139 Mo. App. Droddy, — Tex. Civ. App. — , 114 S. 656. W. 902. Texas. St. Louis, B. & M. R. Co. 42 — California. Gallagher v. Wil- v. Droddy, — Tex. Civ. App. — , 114 liamson; 23 Cal. 331, 83 Am. Dec. S. W. 902. 114. West Virginia. Parfitt v. Sterling Idano. Deasey v. Thurman, 1 Veneer & Basket Co., 68 W. Va. Idaho 779. 438. Illinois. Krieger v. Aurora, B. & 43 — Holmes v. State, 23 Ala. 17. C. R. Co., 242 111. 544; Keller v. Chi- See MeVey v. St. Clair Co., 49 W. cago, W. & V. Coal Co., 184 111. App. Va. 412. 248; Wibel v. Illinois Cent. R. Co., 44— Kelly ville Coal Co. v. Strine, 147.111. App. 187; Whitaker v. Mas- 217 111. 516, aff'g 117 111. App. 115; tin, 143 111. App. 195. Cincinnati, I. & W. Ry. Co. v. Ward, Indiana. Neeley v. Louisville & 120 111. App. 212; O'Leary. v. Zindt, S. I. Traction Co., 53 Ind. App. 659. 109 111. App. 309. Minnesota. Campbell v. Duluth & 45 — Hartford Life Ins. Co. v. N. E. R. Co., Ill Minn. 410. Sherman, 223 111. 329, aff'g 123 111. Missouri. Kendrick v. Ryus, 225 App. 202; Dunn v. Crichfield, 214 Mo. 150, 135 Am. St. Rep. 585. See 111: 292. § 100] Ignobing Evidence and Issues. 229 reversal, the rule being that instructions are to be consid- ered as a whole.* 6 An instruction limiting consideration to testimony in open court has also been held not erroneous as excluding documentary evidence. 47 § 100. Same — Instructions held erroneous, as ignoring evi- dence or withdrawing it from consideration. Requested charges which would hinge the conclusion of guilt upon the testimony of one witness examined, at the trial, are erroneous when there is other evidence tending to establish guilt. 48 An instruction "upon the credibility of a witness," tell- ing the jury that "they have the right to take into consid- eration the contradictory statements of a party as a witness, setting them forth, without calling their attention to the explanation given as to the error or mistake in the prior statements" is erroneous. 49 An instruction, summarizing the elements essential to recovery for sinking a shaft, which improperly omits a refusal to continue and inability to complete the work, is also improper. 50 In a suit for services rendered a deceased person, an instruction directing a verdict on a claim for pasturing and boarding a horse, if plaintiffs rendered such services, was erroneous when there was evidence that the deceased was received as a guest and was suffered to bring with him such property as he needed without any intention of paying for the services. 31 In an action by a father for the seduction of his daughter, the court gave the following instruction: "As to the main 46 — Marietta Glass Mfg. Co. v. 49 — Chesney v. Meadows, 90 Til. Pruitt, 180 Ind. 434. 430. 47— Fitzgerald v. Benner, 219 111. 50— Ke'ch v. Pfeil, 173 111. App. 485, aff'g 120 111. App. 447. 319. 48— McKinstry v. City of Tusca- 51— Burt v. Gabbert, 174 Mo. App. loosa, 172 Ala. 344. 521. 230 Instructions to Jukies. [§ 100 fact of sexual intercourse, the daughter swears to this fact, and the defendant denies it. If these two witnesses, as they stand before you, seem equally to claim your credence, you cannot, in such a case, find for the plaintiff, because, as to that fact, which is radical in the case, there is no pre- ponderance for the plaintiff." It was held that, where there was any other evidence tending to establish such fact, such instruction was erroneous, as tending to mislead the jury. 52 An oral instruction, defining negligence which eliminates all consideration of unavoidable and inevitable accidents, is erroneous when there is evidence of such accident. 63 An instruction, in an action for damages caused by the negligence of a railroad company, which states that cer- tain matters of fact were, as a matter of law, negligence on the part of the plaintiff, and which ignores the elements of negligence on the part of defendant, is also erroneous. 54 ~ In an action for injuries sustained at a railroad crossing caused by a horse being frightened, an instruction ignoring evidence that the whistle of a locomotive was blown in an unusual and unnecessary manner, was properly refused. 55 An instruction, "in an action by a father against the pro- prietor of a planing mill to recover damages for a personal injury sustained by his son while in the defendant 's employ- ment," directing the jury "that, if changing the boy's work was the cause of the accident and injury, the defendant was liable," the whole evidence tending to show that the injury was the result of the boy's own carelessness, was erroneous. 56 In an action for injuries sustained by a fall caused by a defective sidewalk, an instruction, as to obstructions on the sidewalk, which ignored evidence as to the actual position » 52 — Pruitt v. Cox, 21 Ind. 15. 55 — St. Louis Southwestern Ry. 53 — Alabama City, G. & A. B. Co. Co. of Texas v. Cambron, — Tex. v. Ventress, 171 Ala. 285. Civ. App. — , 131 S. W. 1130. 54 — Chicago, B. & Q. R. Co. v. 56— Sinclair v. Berndt, 87 111. 174. Kuster, 22 111. App. 188. § 101] Ignoeing Evidence and Issues. 231 of a step away from the house and in the midst of the side- walk, was erroneous. 57 An instruction in a prosecution for assault with intent to commit rape, which gathers a cluster of circumstances stated by the witnesses, and presents them as proper to be considered in determining the defendant's intent, making no mention of other circumstances pointing in a different direction, is erroneous. 58 An instruction requiring the jury to discard all evidence of defendant's confessions, properly admitted in evidence, in determining whether or not a crime had been committed, is erroneous. 5 ^ An instruction, as to flight of an accused, which is de- fective because it omits to expressly declare the qualifica- tions under which evidence of flight may be considered, cannot be said to have been prejudicial to a defendant if it appears under the evidence, which the jury by the in- struction were to consider, that the jury must necessarily have found such qualifications in connection with the claim of flight. 60 § 101. Same — Instructions held not erroneous, as ignoring evidence or withdrawing it from consideration. An instruction that, if the jury found certain specified facts from plaintiff's testimony, she was not necessarily guilty of negligence, is not erroneous, as ignoring conflict- ing testimony on the part of the defendant, the general charge being full and correct. 61 In proceedings to condemn land, an instruction that "statements of counsel or parties, not made under oath, or 57 — City of Richmond v. Gentry, 61 — Shaw v. Village of Sun 111 Va. 160. Prairie, 74 Wis. 105. As. to the cure 58 — Coon v. People, 99 111. 368, 39 of an instruction ignoring evidence, Am. Eep. 28. see also, Moore v. Aurora, E. & C. 59 — Dodson v. State, 86 Ala. 60. E. Co., 246 111. 56; Colono v. Consoli- 60— People v. Lee Nam Chin, 166 dated Coal Co., 147 111. App. 327. Cal. 570, 137 Pac. 917. « 232 Instructions to Juries. [§ 101 made as admissions, are not evidence, and are not to be regarded as suck by the jury in making up their verdict, ' ' does not exclude an admission, made by the petitioner for the purpose of the trial, that title to a portion of the lands in question was in one of the parties to the proceeding. 62 An instruction that it is a question of fact for the jury to determine whether a part, or, if so, how much, of the pro- ceeds of a designated sale came into the hands of the executor making the sale, after the latter 's decease, in an action against the executor to recover the proceeds of the sale, is not erroneous. 63 62 — Bowman v. Venice & C. By. was not to be understood as telling Co., 102 111. 459. the jury this was the only question 63 — Kirby v. Wilson, 98 111. 240, for their consideration, in which it was held this instruction CHAPTER XI. Assumption of Facts in Instructions. § 102. Assumption of disputed facts. § 103. Illustrations of improper assumption of facts in general. § 104. Same — Criminal cases. § 105. Same — Negligence cases. § 106. Same — Damages. § 107. Instructions held not to assume disputed facts — In general. § 108. Same — Criminal cases. § 109. Same — Negligence cases. § 110. Assumptions in opposition to evidence. § 111. Assumption of facts not supported by any evidence. § 112. Assuming nonexistence of fact in absence of evidence. § 113. Assuming facts by way of illustration. § 114. Assumption of admitted facts. § 115. Assumption of facts supported by strong uncontradicted evidence. § 102. Assumption of disputed facts. In the administration of justice, it is of the highest impor- tance that the court should not invade the province of the jury in instructing as to the law of the, case. It is a legal maxim "that the court is for the law, and the jury for the fact, ' ' and, as was noted in a previous chap- ter, it is the exclusive province of the jury to determine the facts. 1 Accordingly when material facts are in issue between the parties, and the evidence is conflicting as to such issues, it is error and a usurpation of the province of the jury to assume the existence or nonexistence of such facts. 2 1 — See ch. VII, ante. Arkansas. Cox & Sons Mach. Co. 2 — Alabama. Birmingham Eail- v. Forshee, 96 Ark. 156. way, Light & Power Co. v. Girod, California. Llewellyn Steam Con- 164 Ala. 10, 137 Am. St. Rep. 17. denser Mfg. Co. v. Malter, 76 Cal. Arizona. Lujan v. State, — Ariz. 242, 18 Pac. 271. — , 141- Pac. 706. Colorado. Denver City Tramway ( 233 ) 234 Insteuctions to Jueies. [§102 This rule is elementary and familiar, and it makes no difference in the application of the rule whether one fact or several are assumed, 3 or whether the assumption is direct or indirect. 4 The court cannot assume the existence of facts if there is room for controversy even where the evidence is slight, 5 Co. v. Wright, 47 Colo. 366, 107 Pac. 1074. Georgia. Central of Georgia R. Co. v. Woodall, 13 Ga. App. 50. Illinois. , People v. Pezutto, 255 111. 583; Allmendinger v. McHie, 189 111. 308; Chambers v. People, 105 111. 409; Bradley v. Coolbaugh, 91 111. 148; Carroll v. Chicago City Ry. Co., 180 111] App. 309. Indiana. Noblesville & E. G. R. Co. v. Gause, 76 Ind. 142, 40 Am. Rep. 224n; Kuhn v. Bowman, 46 Ind. App. 677. Iowa. Case v. Chicago G. W. R. Co., 147 Iowa 746; Case v. Burrows, 52 Iowa 146; Russ v. Steamboat War Eagle, 14 Iowa 363. Michigan. Weyburn v. Kipp, 63 • Mich. 79. Minnesota. Schwartz v. Germania Life Ins. Co., 21 Minn. 215. Mississippi. French v. Sale, 63 Miss. 386. Missouri. Scheurer v. Banner Rubber Co., 227 Mo. 347, 28 L. R. A. IN. S.) 1207n, 21 Ann. Cas. 1110; St. Louis, K. & N. W. R. Co. v. St. Louis Union Stock Yards Co., 120 Mo. 541; State v. Gann, 72 Mo. 374; Bradley v. Modern Woodmen of America, 146 Mo. App. 428. Montana. Trogdon v. Hanson Sheep Co., 49 Mont. 1, 139 Pac. 792. North Carolina. Fleming v. Wil- mington & W. R. Co, 115 N. C. 676. North Dakota. Lang v. Bailes, 19 N. D. 582. Ohio. Weybright v. Fleming, 40 Ohio St. 52. Oklahoma. Kirk v. Territory, 10 Okla. 46, 60 Pac. 797. Oregon. West v. McDonald, 67 Ore. 551, 136 Pac. 650; E. H. Moore- house & Co. v. Weister Co., 56 Ore. 126, 95 Pac. 497, 107 Pac. 470, 108 Pac. 121. Texas. International & G. N. Ry. Co. v. Kruger, — Tex. Civ. App. — , 163 S. W. 677; Hunt v. Johnson, — Tex. Civ. App. — , 129 S. W. 879. Virginia. Houston v. Com., 87 Va. 257. West Virginia. Layne v. Chesa- peake & O. R. Co., 66 W. Va. 607; Harrison v. Farmers ' Bank', 4 W. Va. 393. The instructions should state the law upon a supposed state of facts to be found by the jury, and not as- sume the facts as determined. Sher- man v. Dutch, 16 111. 283. The assumption of the existence of any fact which is in contest is re- versible error. Central of Georgia R. Co. v. Woodall, 13 Ga. App. 50. Where the evidence is conflicting upon a vital question, the jury should be left to find the facts without any interference by the court. Bradley v. Coolbaugh, 91 111. 148. 3 — Morrison v. Hammond 's Lessee, 27 Md. 604. 4— People v. Williams, 17 Cal. 142. 5 — Stevens v. Snyder, 8 111. App. 362; Miller v. Mutual Ben. Life Ins. § 102] Assumption of Facts in Instructions. 235 although a verdict may be directed where the evidence would not sustain a contrary finding.? Requested instructions which assume a certain state of facts as existing should seldom be given at all, and never if there is room for a different finding by the jury. 7 The error in assuming a disputed fact as true is usually prejudicial, warranting reversal, 8 but a different rule pre- Co., 31' Iowa 216, 7 Am. Sep. 122n; Lewis v. Eiee, 61 Mich. 97; Clark v. McGraw, 14 Mich. 139. Even if the evidence is so slight that the court would approve and sustain a finding against the exist- ence of the fact, it is not error to submit the question to the jury. Blackledge v. Clark, 24 N. C. 394. 6— See §§69, 70, ante, "Directing verdict." See also, Wright v. City of Fort Howard, 60 Wis. 123. 7 — Lewis v. Bice, 61 Mich. 97; Fife v. Chicago & A. E. Co., 174 Mo. App. 655. Instructions which assume as proved matters as to which the evi- dence is conflicting may and should always be refused. Alabama. Liner v. State, 124 Ala. 1. Colorado. Patrick Eed Sandstone Co. v. Skoman, 1 Colo. App. 323, 29 Pac. 21. Illinois. Straus v. Minzesheimer, 78 111. 492; Hepp v. McAvoy Brew- ing Co., 171 111. App. 540; Morgan v. Pacific Exp. Co., 161 111. App. 245. Indiana. Lafayette, M. & B. E. Co. v. Murdock, 68 Ind. 137. Iowa. Connors v. Chingren, 111 Iowa 437. Kansas. Metropolitan St. Ey. Co. v. McClure, 58 Kan. 109, 48 Pac. 566. Minnesota. Lake Superior & M. E. Co. v. Greve, 17 Minn. 322 (Gil. 299). Missouri. Worley v. Hicks, 161 Mo. 340. * Nevada. People v. Bonds, 1 Nev. 33. North Carolina. Bradley v. Ohio Eiver & C. Ky. Co., 126 N. C. 735. South Carolina. Watts v. Blalock, 17 S. C. 162. South Dakota. Arneson v. Spawn, 2 S. D. 269, 39 Am. St. Eep. 783. United States. Snyder v. Bosen- baum, 215 U. S. 261, 54 L. Ed. 186; White v. Van Horn, 159 U. S. 3, 40 L. Ed. 55. Where the validity of a contract is denied and the execution of it is said to have been abandoned, in- structions assuming it to be in force are properly refused. Snyder v. Eosenbaum, 215 U. S. 261, 54 L. Ed. 186. 8— See illustrations, §§ 103-106, post. Where the charge is so worded as to assume the existence of a mate- rial controverted fact involved in the issue, regarding which the evi- dence is conflicting, and the verdict is in accordance with such assump- tion, a new trial should be granted. L. I. Aaron Co. v. Hirschfeld, 89 111. App. 205; Boaz v. Schneider, 69 Tex. 128. 236 Instructions to Jubies. [§102 vails where the error is invited by the complaining party, 9 or where substantial justice has been done. 10 An erroneous assumption of facts may also be cured by the giving of a correct instruction, 11 although there are decisions to the contrary. 12 Usually on appeal, no complaint can be made of a para- graph of an instruction which assumes a fact, when the other paragraphs of the same instruction correctly submit 9 — As to the invited error in in- structions, see ch. XXXIV, post. Where a requested instruction has been refused, the party making the request cannot object to an instruc- tion substantially similar, that it as- sumes facts of which there is no evi- dence. " Philadelphia, W. & B. E. Co. v. Howard, 13 How. (U. 8.) 307, 14 L. Ed. 157. See also, Auburn Bolt & Nut Works v. Shultz, 143 Pa. St. 256, in which it was held that, if an instruc- tion is asked, based on the assump- tion that a Gfirtain fact is before the jury, the party presenting it cannot afterwards object that there was no evidence in the ease justifying the submission of the question. 10— Bradley v. Lee, 38 Cal. 362; City of Chicago v. Moore, 139 111. 201; Bicards v. Wedemeyer, 75 Md. 10; Hardy v. Graham, 63 Mo. App. 40. And see, generally, ch. XXXIV, post. Error in assuming that a mule was worthless held not material where the evidence showed that such mule had glanders, was killed by the county authorities and was of no value. Caruthers v. Link, — Tex. Civ. App. — , 154 S. W. 330. The assumption of a controverted fact in the charge, when by such as- sumption a proposition favorable to the complaining party is emphasized and made more prominent, is not a ground for reversal. Fort Worth Pub. Co. v. Hitson, 80 Tex. 216. In a prosecution for homicide, an instruction assuming the existence of a clot on the brain of deceased was not prejudicial error, as the ver- dict was not affected. State v. Ayers, 86 S. C. 426. 11 — Instructions which assume ma- terial facts are erroneous unless giv- en in connection with another, which leaves it to the jury to determine whether the assumed facts are true. State v. West, 157 Mo. 309; State v. Hecox, 83 Mo. 531. 12 — An improper assumption of a fact is not cured by other instruc- tions submitting the question of its existence to the jury. Cahoon v. Marshall, 25 Cal. 201; Bressler v. Schwertferger, 15 111. App. 294. "An instruction which assumes that plaintiff has proven damages is * * * necessarily prejudicial to the defendant," and the error is not cured by another portion of the charge, which "tells the jury that they are the judges of the facts and the credibility of the witnesses." Marti v. American Smelting & Ke- nning Co., 23 Utah 52, 63 Pac. 184. § 103] Assumption op Facts in Instructions. 237 the issue, 13 it being a familiar rule that instructions must be considered as a whole. 14 § 103. Illustrations of improper assumption of facts in general. Although the rule against assuming facts is well recog- nized, its violation is a most fruitful source of reversal. The error results rather through inadvertence than inten- tion, and the question of whether an instruction is erroneous is not always easily determined, as it involves a construc- tion of the language used. Accordingly it has been thought not improper to give a considerable number of specific instances of instructions which have been attacked as erroneous, and for convenient reference some of the instruc- tions, as in criminal and negligence cases, have been classified in separate sections. An examination of these illustrations will show that the rule against assumption is enforced rather strictly. In an action where one of two defendants may be liable, an instruction which assumes that if one is liable, both are liable, is improper. 15 In trespass for assault and battery, an instruction which assumes as a fact that violence was used is erroneous, as assuming the main fact in issue, and is a clear invasion of the province 'of the jury. 16 In a proceeding for forcible entry and detainer, instruc- tions "that defendant had, and had proved that he had, undisputed possession [of the premises] between two and 13 — A paragraph of an instruction veston, H. & S. A. By. Co. v. Grant, which assumes as a fact that a plain- — Tex. Civ. App. — , 124 S. W. 145. tiff was injured cannot be com- 14 — See ch. XVI, post. plained of "where the preceding and 15— Hansen v. Crocker, 160 111. succeeding paragraphs clearly sub- App. 514. mit the issue as to whether such 16 — Mohr v. Kinnane, 85 111. App. plaintiff was injured, as the charge 447. must be considered as a whole. Gal- 238 Instructions to Juries. [§ 103 three years, ' ' are erroneous, as assuming the fact as deter- mined. 17 In an action for commissions for effecting- a sale of land, a request for an instruction which assumes that a definite price was fixed at the time of plaintiff's employment is properly refused, where the evidence is conflicting upon that point. 18 An instruction telling the jury to what extent a special agent may bind his principal, and continuing ' ' it therefore follows in this case," etc., impliedly assumes the existence of a special agency and is erroneous. 19 An instruction "that, if they [the jury] find from all the evidence * * * that the goods sold in this case were sold on the credit of the defendant, then the plaintiff is entitled to recover," is erroneous, in assuming that the goods were sold. 20 In submitting the question of the existence of a chain of facts, it is error to assume the existence of one link in the chain. Thus an instruction that, ' ' if the jury find that the plain-: tiffs did the work * * * under the provisions of the con- tract, * * * offered in evidence by the defendant," is erroneous as assuming the existence and execution of the contract; 21 and an instruction "that the plaintiff is entitled to recover such sum as the jury shall believe, from the evi- dence, to be /the value of the materials belonging to ■ him, and used by the defendants in the new arch, ' ' is erroneous as assuming that such materials were so used. 22 An instruction that if the defendant received certain notes in controversy before their maturity, and "without notice of the conditions attached to them," etc., though 17— Wall v. Goodenough, 16 111. 20— Cropper v. Pittman, 13 Md. 415. 190. 18 — Sample v. Rand, 112 Iowa 21 — Baltimore & O. E. Co. v. Res- 616. ley, 7 Md. 297. 19 — Buchanan v. Caine, — Ind. 22 — Denmead v. Coburn, 15 Md. App. — , 106 N. E. 885. 29. § 104] Assumption op Facts in Instructions. 239 open to criticism, as telling the jury that there were condi- tions attached to the transfer of the notes, is not ground for reversal, if other parts of the charge make the matter per- fectly clear. 23 The use of qualifying words, such as "if," "when," etc., usually operates to render the instruction proper, 24 but the use of the word " if " preceding each statement of fact, will not render an instruction free from error where it is not stated how any query thereby raised is to be solved, whether by reference to the evidence or otherwise, and where the solution is not even referred to the jury. 25 In submitting facts to the jury, courts sometimes make certain deductions which amount to an unwarranted assumption. Thus, an instruction as to whether a deed is delivered, which assumes that the grantor intended to deliver such deed, is erroneous. 26 This vice is further illustrated in negligence cases. § 104. Same — Criminal cases. In giving instructions in a criminal case, where a plea of not guilty has been entered, the court may not assume that the defendant is guilty, 27 since such assumption would be equivalent to directing a verdict of guilty, 28 neither may 23 — Turner v. Grobe, 24 Tex. Civ. told grantee that she could get said ■ App. 554'. deed or instrument at any time she 24 — See § 107, post. desired, and have it recorded, if she 25 — Chambers v. People, 105 111. wanted to, then that wouM be a 409. t ' delivery, " — is erroneous, since, 26 — 4-n instruction: "To consti- whether such facts constitute a de- tute a delivery, it is not necessary livery depends upon the intent of that the deed should be placed in the the grantor, and such instruction grantees' hands, but it is necessary assumes that the intent existed, that it should be and was put into Walker v. Nix, 25 Tex. Civ. App. the control of the grantees, and that 596. the grantees accepted the same. 27 — State v. Sloan, 35 Mont. 367 That would be a delivery. If you 89 Pac. 829. believe from the evidence that the 28 — State v. Sloan, 35 Mont. 367, grantor placed said deed or instru- 89 Pac. 829. See § 70, ante, "Direct- ment in a trunk in the house where ing verdict. ' ' she and grantee had access to, and 240 Instructions to Jukies. [§ 104 the court assume that there is an accomplice, as this is an assumption that a crime has been committed and that there is a principal, 29 and the use of the word "crime" has been held erroneous as indicating an impression of the court that an offense had been committed. 30 The assumption that a defendant has a good character is erroneous, 31 and on a prosecution of a minor for larceny, the giving of an instruction as to intent, stating that the defendant "was a bright boy," has been held reversible error. 32 In a prosecution for assault with intent to kill, it is error to assume that, a knife is a deadly weapon, 33 and a charge assuming as a fact that a person accused of murder carried a pistol for defensive purposes should not be given. 34 It is also error to assume, in a prosecution for homicide, that the accused was the assailant, 35 and instructions as to self-defense are erroneous when they assume that the defendant is justified in protecting himself, 36 or when 29— State v. Sloan, 35 Mont. 367, 32— Neville v. State, 148 Ala. 681. 89 Pac. 829. 33— State v. Harris, 209 Mo. 423. 30— Pettus v. State, 58 Tex. Cr. 34— Williams v. State, 161 Ala. 52. App. 546, 137 Am. St. Eep. 978. 35 — In a prosecution for homicide, 31 — A requested charge that the where the evidence is conflicting as defendant has proven without con- to whether an accused or the other flict a good character and that the party was the assailant, an instruc- jury must consider this proof with tion which assumes that the accused other evidence, etc., is properly re- was the assailant is improper. Fog- fused sfs assuming that the defend- Ha v. People, 229 111. 286. ant had a good character, a question ' 36 — A charge which assumes that for the jury. Eeid v. State, 181 a threatened attack with a. billiard Ala. 14. ball was such a dangerous one as A charge that "the jury may con- would authorize a defendant to aider the good character of the de- shoot is erroneous and .should be re- fendant and may find the defendant fused. Cheney v. State, 172 Ala. 368. not guilty if such good character In a prosecution for assault with and the other evidence generates a intent, to murder, an instruction that reasonable doubt of guilt," is prop- if the person assaulted was reaching erly refused as assuming the estab- for a gun, and the defendant was lishment of the defendant's good free from fault in bringing on the character. Sadler v. State, 165 Ala. difficulty and had no reasonable 109. mode of escape, then he had a right § 104] Assumption op Facts in Instructions. 241 other facts material in character are assumed by the court. 37 In a prosecution for homicide, an instruction that {he jury should consider the conduct of the defendants at the time of the shooting, and immediately afterwards, and if they left the county to avoid arrest, such fact might be considered in determining their guilt, is erroneous as assuming that the defendants were present a& the killing, when they testi- fied that they were elsewhere. 38 An instruction that ' ' on the question of intent on the part of the defendants, and the purpose of their prior engage- . ment to meet and settle the difficulties, whether to be done peaceably or otherwise, you are to consider their prior con- duct, and if they armed themselves with deadly weapons before their going, the purpose and object of their arming themselves," is erroneous as assuming that the defendants had a prior engagement to meet and settle the difficulties. 39 On an indictment for murder, an instruction that "the theory of the defense is that defendant is not guilty, but that the injury or wound which the deceased woman deceived was caused by her being struck by a train of cars, ' ' assumes as a fact that the deceased woman received a wound which caused her death. 40 An instruction that the sending of certain postal cards to parties other than the defendant, or members of her immediate family, did not justify an assault on the prose- cuting witness, is erroneous as it assumes that the postal cards had been introduced in evidence addressed to the to stand his ground, was erroneous, to prevent his, receiving great bodily as the question whether the defend- harm the killing of the deceased was ant was in imminent peril and had necessary, and that the deceased was the right to .stand his ground was the assailant, is erroneous as assum- for the jury. Phillips v. State, 170 ing that the killing of the deceased Ala. 5. was the act of the defendant. Peo- 37 — An instruction that before the pie v. Warren, 259 111. 213, Ann. Cas. defendant can avail himself of the 1914 C 219n. right of self-defense it must appear 38 — People v. Pezutto, 255 111. 583. that at the time of the killing the 39 — Stokes v. State, 54 Fla. 109. danger was so urgent and pressing 40 — Hellyer v. People, 186 111. 550. 242 Instructions to Juries. [§104 other parties and that they had been sent, and it also assumes that an assault had been made. 41 Where the genuineness of a diary is disputed, an instruc- tion stating that the diary "kept through the year" is in evidence, is erroneous as assuming the existence of a dis- puted fact. 42 In a prosecution for making a false entry in an account book with intent to defraud, a charge that if the accused wilfully made "the alleged false entry in the manner and form set out in the indictment ' ' he was guilty, was erroneous as assuming that the entry was false. 43 Where, in a prosecution for receiving stolen goods, it appears that the goods were carried in a buggy, over which defendants had control, to the place of sale, and the issue of fact most seriously controverted is as to whether defend- ants assisted in taking the goods to the buggy, a statement in an instruction that if, ' ' at any time between the time they took these goods to the buggy, " etc., assumes as a fact that defendants took them there, and is reversible error. 44 § 105. Same — Negligence cases. The erroneous assumption of facts is well illustrated in negligence cases where instructions submitting the question of negligence to the jury frequently assume such fact as proved, 45 as well as other facts which are material and 41 — De Silva v. State, 93 Miss. 635. speed, or in providing an insufficient 42 — Scott v. People, 141 111. 195. number of men to keep the track in 43 — Pope v. State, — Tex. Cr. the section where such injury oc- App. — , 170 S. W. 150. curred, if it did occur, in good condi- 44 — Com. v. Light, 195 Pa. 220.- tion, failed to exercise ordinary 45 — In an action for the death care," etc., you will find for the of a railroad employee who was plaintiff, was erroneous as assuming struck by a falling lump of coal, an that the train was run at too great instruction that, "If you believe a rate of speed and that an insufli- from the evidence that the defend- cient number of sectionmen were ant in loading the coal on the tender provided. Missouri, K. & T. Ey. Co. or in maintaining its track at the of Texas v. Smith, — Tex. Civ. App. place where such injury occurred, or — , 133 S. W. 482. in running the train at too great a In an action for the death of a § 105] Assumption of Facts in Instructions. 243 as to the nature or existence of which there is a dispute.' person struck by a train, it is erro- neous to give instructions assuming that the sounding of the whistle would have averted the accident, or that the train employees discovered the peril of the deceased. Neas v. Chicago, B. & Q. Ry. Co., 138 Mo. App. 484. In an action against a railway for injuries resulting from exposure to cold, , an instruction stating the duties of 'railroads as to keeping pas- senger houses warm, and staging, ' ' You are charged that the evidence shows a failure on the part of the defendant railway company to keep its depot warm," etc., was erroneous as assuming that the defendant was negligent in not having a fire in its waiting ropm. Missouri, K. & T. Ey. Co. of Texas v. Williams, — Tex. Civ. App. — , 133 S. W. 499. Charge assuming negligence of de- fendant in starting street ear held error. West End & Atlanta Ry. Co. v. Mozely, 79 Ga. 463, 2 Am. Neg. Cas. 401. 46 — It is erroneous to give an in- struction assuming the existence of a trench across a track at the place of an alleged injury, when the exist- ence of the trench at that place was a vigorously contested issue of fact. Galveston, H. & S. A. R. Co. y. Wirtz, 55 Tex. Civ. App. 555. An instruction assuming the exist- ence of an engine on another track nearby at the time of the accident, a material fact which was sharply controverted, is defective. Plummer v. Indianapolis Union R. Co., 56 Ind. App. 615. In an action for injuries sustained in a collision between a street car and wagon an instruction that if the car was run so close to a preceding car that the noise of such preced- ing car drowned the signals of the second car, the defendant was guilty of negligence, was erroneous as as- suming the existence of a disputed fact. Indiana Union Traction Co. v. Reynolds, 176 Ind. 263. In an action for injuries to an em- ployee, an instruction assuming that there was a guard on a machine is properly refused where the plaintiff testified to , the contrary. Conti- nental Gin Co. v. Milbrat, 10 Ala. App. 351, 7 N. C. C. A. 596. In an action for injuries to a serv- ant caused by falling from a wall while rolling a wheelbarrow contain- ing concrete, where there were two issues, as to whether a post was in dangerous proximity to the servant 's place of work, and whether the post was within one foot of the wall, an . instruction which assumed that any point within one foot of such wall was a dangerous position for the post to occupy, was erroneous. Ganey v. Kansas City, 259 Mo. 654. In an action for injuries caused by an automobile, an instruction that if the jury find "that the de- fendant or his agent, in operating said automobile * * * operated the said ear without observing the highest degree • of care, ' ' plaintiff could recover, was erroneous as as- suming that the defendant or his agent was operating the automobile at the time, and suggesting that such was the idea of the court, when the ownership and control of the ma- chine was a vital issue in the case. Warrington v. Bird, 168 Mo. App. 385. In a suit for negligent failure to promptly deliver a telegram, an in- struction that if the jury find th*t 244 Instructions to Juries. [§105 The error in the instruction frequently results from the language used, and the words "had it used reasonable care ' ' have been held to imply that a defendant did not use reasonable care, 47 and such words have also been held to assume the existence of contributory negligence. 48 In other cases, error has resulted from the court making certain deductions which amounted to an unwarranted assumption. Thus, an instruction assuming that a child fifteen years old was of ' ' tender years and imperfect discre- tion," has been held erroneous. 49 the cause of delay "was the mis- take in the address of plaintiff in changing it from 214 to 215 Main Street," then it becomes your duty to determine if the mistake resulted from the defendant's negligence, was properly refused as it assumed that there was a mistake in the ad- dress, a question as to which the evi- dence was conflicting. Western U. Tel. Co. v. Bennett, — Tex. Civ. App. — , 124 S. W. 151. In an action for the killing of a dog an instruction that, "when the^ engineer in charge of defendant's train saw plaintiff's dog running along beside the railroad track, he had a right to presume that the dog would leave the track before being struck," was properly refused, as it assumed as a fact that the dog was running along the side of the track when such question of fact was con- troverted. St. Louis, I. M. & S. Ry. Co: v. Rhoden, 93 Ark. 29, 137 Am. St. Rep. 73, 20 Ann. Cas. 915. In an action for injuries to a switchman, an instruction that if the jury believed that while plaintiff was employed as a switchman, "and that while he was walking on the top of the car next to the rear car on his way to such rear car, ' ' as alleged and that "while near the end of the car on which he was walking one of defendant's switch crew" uncoupled said rear car, was subject to the ob- jection that, it assumed that the plaintiff was walking from the sev- enth to the eighth car when injured. Ft. Worth Belt Ry. Co. v. Johnson, — Tex. Civ. App. — , 125 S. W. 387. 47 — In an action by a guest, in- jured at a hotel by a defective chair, it was proper to refuse an instruc- tion that the defendant was liable "had it used reasonable care" to ascertain the defect, as the quoted words assumed that the defendant did not use reasonable care. Burch- more v. Antlers Hotel Co., 54 Colo. 314, 130 Pac. 846, 4 N. C. C. A. 707. 48 — An instruction that if the jury believed that a basement was sufficiently lighted to enable a per- son with average eyesight to easily see the pit into which he fell, and if they further believed "that had plaintiff been in the exercise of or- dinary care he would- have detected the depression and would have avoided falling," was erroneous as telling the jury that the fall was due to lack of ordinary care. Glaser v. Rothschild, 221 Mo. 180, 22 L. R. A. (N. S.) 1045, 17 Ann. Cas. 576. 49 — In an action for personal in- § 106] Assumption of Facts in Instructions. 245 Also, an instruction that, "if the jury believe the evi- dence, the plaintiff could have extricated himself from any danger after he saw the engine," is properly refused, as being an inference to be made by the jury from all the evi- dence. 50 Error has resulted from the assumption of the existence of a specified fact in directing the jury as to their verdict in case they find that the injury complained of resulted or did not result from the specified fact. Thus, an instruction that, "if the jury believe. * * * the injury to the plaintiff occurred by reason of the neglect of the employees of the defendant to obey the signal of the semaphore, * * *" assumes as a fact the neglect of the defendant's employees to obey such signal. 51 » An instruction submitting to the jury the question of neg- ligence and the question as to whether it caused the acci- dent, is improper where it further states that such negli- gence was the cause. 52 § 106. Same — Damages. An instruction which assumes that a plaintiff has proven ^damages, invades the province of the jury and is necessarily prejudicial, 53 and it is also erroneous to give an instruction juries, an instruction assuming that 52 — Lichter v. Aurora, E. & C. R. a child fifteen years old was of Co., 129 III. App. 216. 1 "tender years and imperfect discre- 53t — Marti v. American Smelting tion" was erroneous. Whether or & Refining Co., 23 Utah 52, 63 Pac. not he was of "tender years," etc., 184. should have been submitted to the An instruction that, "if the jury jury, and the facts of 'his age, capac- shall believe from the evidence that jty, experience, and knowledge of the the damage to the * * * [prop- particular danger passed on by it. erty] of the plaintiff was occasioned Day v. Citizens ' Ry. Co., 81 Mo. App. by fire communicated from the en- 471. Compare Schmidt v. St. Louis gines of, or by the agent or agents R. Co., 163 Mo. 645; Bertram v. Peo- of, the defendant, * * * then pie's Ry. Co., 154 Mo. 639. * * *," assumes that damage was 50 — McQuay v. Richmond & D. R. done to plaintiff's property. Balti- Co., 109 N. C. 585. more & S. R. Co. v. Woodruff, 4 51— Illinois Cent. R. Co. v. Zang, Md. 242. 10 III. App. 594. In an action for a balance due on 246 Instructions to Juries. [§106 which assumes that some sum further than nominal dam- ages has been proved, when such fact is disputed. 54 Error has been held to result from the use of the words "in arriving at the compensatory damages," 55 and the words "in estimating the damages," 56 thus assuming that the damages were proven. Instructions as to damages which assume other disputed facts to be proved, should not be given. 57 a sale of goods, where defendant set up a breach of warranty of value, and that a portion of the goods only were delivered, which were invoiced by him at a certain amount, an in- struction that the measure of dam- ages was the difference between the amount warranted and the invoice is an improper assumption of contro- verted facts. Smith v. Dukes, 5 Minn. 373 (Gil. 301). 54 — An instruction that "the plaintiff, under the evidence in this case, is entitled to recover at least nominal damages, and such further sum as you may believe, from the preponderance of the evidence and the facts and circumstances in evi- dence, was the difference between the price which the defendant agreed to sell for and the market value of the premises at a certain date," assumes that some further sum than nominal damages was shown by a preponderance of the evidence. Dady v. Condit, 188 111. 234. 55 — In an action for assault and battery, where the defense was a denial, an instruction that the jury,' "in arriving at the compensatory damages," etc., was held erroneous, as assuming that compensatory dam- ages were to be awarded. Judd v. Isenhart, 93 111. App. 520. 56 — 'Where it is a question in issue whether or not the plaintiff sustained any damage from the wrong com- plained of, an instruction containing the language, "that, in estimating the measure of damages in this case, ' ' etc., and ' ' that they must find for the plaintiff, and the only question in this case is the amount of damages which they ought, under the evidence, to allow the plaintiff, ' ' and that "in arriving at the ver- dict, and the amount of damages you should give plaintiff in this case," etc., assumes that some dam- ages have been sustained by plain- tiff. Dady v. Condit, 188 111. 234, rev 'g 87 111. App. 250. 57 — An instruction "that he [the plaintiff] is entitled to recover in this action all damages proved to have been sustained by hijn on ac- count of the trespasses committed by defendant on plaintiff's prem- ises, as alleged in the declaration," assumes the commission of the tres- pass. Small v. Brainard, 44 111. 355; An instruction that, ' ' if the plain- tiff has sustained no injury by rea- son of the alleged trespass, still he is entitled to a verdict for nominal damages," is erroneous for assum- ing that a trespass was committed. Steele v. Davis, 75 Ind. 191. § 107] Assumption of Facts in Instructions-. 247 § 107. Instructions held not to assume disputed facts — In general. An instruction stating facts hypothetically is proper where the jury is required to find the facts stated from the evidence, 58 and such requirement need not be repeated as 58— Ladd v. Pigott, 114 111. 647. Chicago City By. Co. v. Math, 114 111. App. 350. An instruction which states in hypothetical form the 'facts which the evidence tends to prove is not obnoxious to the rule against im- proper assumptions of fact. Alabama. Seaboard Mfg. Co. v. Woodson, 94 Ala. 143; Paul v. Meek, 6 Ala. 753. Colorado. Jackson v. Burnjiam, 20 Colo. 532, 39 Pac. 577. Illinois. Ladd v. Pigott, 114 111. 647. Indiana. City of Logansport v. Justice, 74 Ind. 378, 39 Am. Eep. 79n; I. P. Force Handle Co. v. Hisey, 52 Ind. App. 235. Iowa. State v. Thompson, 19 Iowa 299. Mississippi. Jones v. Edwards, 57 Miss. 28. Missouri. O'Connell v. St. Louis, C. & W. Ey. Co., 106 Mo. 482; Klutts v. St. Louis, I. M.' & S. Ey. Co., 75 Mo. 642: Texas. Missouri Pac. Ey. Co. v. Lehmberg, 75 Tex. 61; San Antonio & A. P. Ey. Co. v. Bftlt, 24 Tex. Civ. App. 281; Galveston, H. & S. A. Ey. Co. v. Waldo (Tex. Civ. App.), 32 S. W. 783. Where the propositions in an in- struction are all made to rest upon what the jury shall believe from the evidence, or when it states a hypo- thetical case, which, if the jury be- lieve from the evidence' existed, they may consider, it will not be liable to the objection that it assumes there is evidence of the fact. Ladd v. Pigott, 114 111. 647. See also, Triolo v. Poster (Tex. Civ. App.), 57 S. W. 698. An instruction commencing with the words "if you find for the plain- tiff, ' ' and stating , what damages may be assessed, does not assume the truth of the facts in issue. I. F. Force Handle Co. v. Hisey, 52 Ind. App. 235. In an action for injury at a rail- way crossing, an instruction "that as to whether or riot defendant blew off steam from its engine at .said railroad ' crossing, and by reason thereof frightened the hof se that the wife of plaintiff was driving, is a question of fact to be determined by the jury from the evidence before them; and if you find that the de- fendant company blew off steam from its engine at said crossing, and thereby frightened the horse then being driven on such crossing by plaintiff's wife, and the agents or employees of defendant knew of the presence of plaintiff's wife on said track, then you- will further consider whether or not the blowing off of steam was negligence, and whether same frightened said horse, ' ' — is not objectionable as assuming "as a fact that the horse was just being driven upon the crossing when the steam escaped, etc." San Antonio & A. P. Ey. Co. v. Belt, 24 Tex, Civ. App. 281. 248 Instructions to Juries. [§107 to each one of the separate facts involved in the case. 59 But the instructions should not state the facts positively, v the qualification "if any" being proper, 00 although in one case it was contended that the use of the words "if any" operated to prejudice the jury against a plaintiff. 61 It is not objectionable, as assuming facts, to instruct that, "if the jury believe from the evidence * * * that both of the defendants concurred in laying hands on him * * *;" 62 and an instruction that "if you believe the owner directed," etc., does not assume that he directed. 63 Paragraphs of an instruction referring to an injury sus- tained have been held not objectionable when preceded by the conditional statement "if the jury finds," or, "if they believe." 64 The word "when" has been characterized as a roughly serviceable equivalent for "if," 83 and it has been held not improper to use the words, ' ' as you may find, " ° 6 or to 59 — Sehmitt v. Kurrus, 234 111. 578, aff'g 140 HI. App. 132. 60— McAyeal v. Gullett, 202 111. 214, aff'g 105 111. App. 155. 61 — In an action for injuries caused by the sudden starting of a street car while a passenger was alighting, a charge that the verdict should be for the defendant if the fall and the injury, ' ' if any, ' ' was caused by the plaintiff 's contributory negligence Was not erroneous as the quoted words referred to the injury, and if construed to also apply to the fall did not assume that the plaintiff had been guilty of contribu- tory negligence. Drewery v. El Paso Elee. Ry. Co., -* Tex. Civ. App. — , 120 S. W. 1061. 62 — Mullin v. Spangenberg, 112 111. 140. 63— Fitzgerald v. Benner, 120 111. App. 447, aff'd 219 111. 485. 64 — Central of Georgia R. Co. v. Woodall, 13 Ga. App. 50. 65 — On a trial of the right of prop- erty an instruction that the burden of proof is discharged "when" the plaintiff shows that defendant was in possession, of the property at the time of levy, is not erroneous as as- suming that the defendant was in possession of the property. Light- man Bros. & Goldstein v. Epstein, 164 Ala. 660. 66 — Bronnenburg v. Charman, 80 Ind. 475, in which case the court in- structed: "You may find for the plaintiff for any amount which you may find was collected and not paid over, * * * or you may find for the whole amount collected and not paid over, after deducting such amount as you may find was con- sumed by fire." § 107] - Assumption of Facts in Instructions. 249 state that one of the parties "claimed" certain facts to have been shown. 67 An instruction containing the statement that "plaintiffs, by their reply, give us a history of the transaction," need not further state that such history is plaintiff's version of the facts and does not assume that the history is true. 68 Where an attorney sought to establish a claim for services, an instruction that the claimant was a "reputable" lawyer was not erroneous as sustaining the character of the plain- tiff since the quoted word merely meant that the plaintiff was a regular lawyer. 69 Instructions stating legal principles in the abstract, though applicable to the evidence in the case, cannot be objected to as assuming the existence of facts not proven. 70 It is not trenching upon the province of the jury to say that evidence has been given tending to establish a fact, 71 or to state matters of common knowledge, 72 and in states where damages for mental anguish are recoverable, such suffering may sometimes be assumed. 73 An instruction that, in estimating plaintiff's damages, the jury might take into consideration physical injuries^ if any, resulting from the injury, does not assume that the 67 — Hawley v. Chicago, B. & Q. the act mentioned therein. People By. Co., 71 Iowa 717. v. Mullen, 179 HI. App. 262. Carraher v. San Francisco Bridge 71 — Graham v. Nowlin, 54 Ind. Co., 81 Cal. 98, 22 Pac. 480. 389 J State v. Watkina, 11 Nev. 30. 68— De St. Aubin v. Marshall 72— Harris v. Shebek, 151 111. 287. Field- & Co., 27 Colo. 414, 62 Pac. 73— It is not prejudicial error to 199 assume that a son will suffer mental 69-In re Freshour's Estate, 174 an S uish in b <™S de P rived ° f the °P' Tv/r- v. iix i R t t? A f-K *\ fi7n portumty of being with his father Mich. 114, 45 L. R. A. (N. S.) 67n, ^ ^ ^ .^^ ^^^ ^ ^ Ann. Cas. 1915 A 726n. Cq y Soekwel]) gl Ark 475 _ 70-Taylor v. Territory, 7 Ariz. In an acti(m f m ^.^ ^ ^.^ 234, 64 Pac. 423. a telegraph message the giving of a An instruction which only pur- charge assuming that a mother suf- ports to declare a principle of law f ere( j men tal anguish if deprived of applicable to" the case is not objec- attending the funeral of her son, was tionable on the ground that it as- ndt error. Western U. Tel. Co. v. sumes that the defendant committed Wilson, — Ark. — , 133 S. W-. 845. 250 Instructions to Jukies. [§ 107 injuries complained of in the declaration were inflicted, 74 and an instruction to find such sum as will compensate for the injury, if any, does not assume the injury. 75 An instruction that the testimony of the president of a bank that he had no notice of any defect in a note would not be conclusive, and that notice to any of the officers of the bank of such infirmity was notice to the bank, does not assume that other officers of the bank had notice. 76 An instruction that, if the defendant did certain acts specified, they should infer a fraudulent intent, is not objec- tionable as assuming that these acts are established. 77 An instruction that ' ' the question is whether the wrong was done wilfully and without lawful justification or ex- cuse, and if you find and believe from the evidence that the assault of the defendant's motorman, if any, upon plaintiff was wanton and brutal, then your verdict must be for the plaintiff ' ' is not erroneous as assuming that the motorman assaulted the plaintiff. 78 An instruction* that "unless you find that 'defendant' acted in violation of law in making the assault," or if de- fendant "was acting in his necessary self defense," etc., does not assume that the person assaulted had done some act from which it might appear to defendant that such per- son was making an unlawful assault on him. 70 An instruction that defendant "had no right to do" cer- tain specified things does not assume that he did them, or take the question of fact from the jury, 80 and an instruc- tion that a husband had the right to give personalty to his wife, without any writing evidencing the gift, and that 74 — Evans v. City of Joplin, 84 78 — Dawson v. Metropolitan St. R. Mo. App. 296. Co., 157 Mo. App. 642. 75 — Western Union Tel. Co. v. 79— Woodmen of the World v. Mc- Linn (Tex. Civ. App.), 23 S. W. 895. Cofslin, — Tex. Civ. App. — , 126 S. 76— Bank of Bushnell v. Buck W. 894. Bros., 161 Iowa 362. 80— Timm v. Bear, 29 Wis. 254. 77 — State v. Thompson, 19 Iowa 299. § 108] Assumption of Facts in Instructions. 251 such a gift would be valid as against the heirs, does not improperly assume that the gift was in fact made. 81 Where an answer sets up payment as a consequence of certain transactions between plaintiff and defendant, an instruction which speaks of "payment of the note sued on by plaintiff to defendants, as alleged in their answer," is not misleading as assuming a payment in money. 82 In an action for wages, an instruction which tells the jury to "find in favor of the plaintiff such amount as they may believe * * * to be the reasonable value of such services" does not assume that the services were of some value. 83 An instruction that "it is incumbent on the defendants, under the contract alleged in plaintiff's declaration, to show an offer to perform, or some sufficient excuse for non- performance, on their part, in order to excuse themselves from liability to pay damages, if the evidence shows that the plaintiffs were ready and willing to perform their part of the contract, ' ' does not assume the existence of the con- tract. 84 In an action against an agent and others by the principal for fraud and conspiracy, if an instruction that, "if^plain- tiff 's agent acted in entire good faith, and the job was put up on him, instead of on plaintiff, then plaintiff has no claim against this party," is objected to as containing an assumption, attention should be called to the specific ground, as that objection would not be likely to occur to any one without notice. 85 § 108. Same — Criminal cases. An instruction that necessary facts must be consistent with each other and with the main fact sought to be estab- 81 — Hopper v. Hopper, 84 Mo. 84 — Bird v. Forceman, 62 111. 212. App. 117. 85 — Emmons v. Alvord, 177 Mass. 82 — Semple v. Crouch, 8 Mo. App. 466. 593. 83 — Blackman v. Cowan, 11 Mo. App. 589. 252 Instructions to Juries. [§108 lished "that is, with the defendant's guilt," is no1> errone- ous as assuming by the quoted words that the defendant is guilty, 86 and in a prosecution for malicious shooting an instruction that the principles of the law of self-defense in murder cases apply to ' ' malicious shooting cases ' ' does not assume the'fact of malice on the part of the accused, since the terms used indicate a class of cases. 87 In a prosecution for larceny, an instruction that, "If the watchman was on the inside * * * as a part of the scheme to loot this store, etc., is not objectionable, as the word "if" shows that the judge did not undertake to de- cide that the acts mentioned therein constituted a scheme to loot the store. 88 An instruction requiring the jury to believe from the evi- dence beyond a reasonable doubt that the defendants, or some of them, entered into a conspiracy to commit the crime of arson, and "that thereafter the conspirators or any of them, pursuant to said conspiracy and in further- ance thereof, set fire to and burned said building," etc., is not erroneous as assuming the fact of conspiracy. 89 A charge in a homicide case that, "mere weakness of mind is jio defense to crime ' ' provided that the accused knew the difference between right and wrong does not as- sume that such aecused was of weak mind. 90 An instruction that "it is important that you determine whether the alleged assault, or assault and battery, made upon W. [the deceased] by defendant, either alone or in company with others, was an unlawful or a lawful act," does not assume that such assault was proved. 91 Where the evidence was that the defendant struck the deceased on the head with a heavy club, causing death within a few hours, an instruction that, "if the defendant, 86— Gordon v. State, 62 Tex. Cr. 90— Cox v. State, 60 Tex. Cr. App. App. 638. > 471. 87— State v. Lavin, 64 W. Va. 26. 91— Patterson v. State, 70 Ind. 88— State v. Lucas, 88 S. C. 520. 341. 89— People v. Harris, 263 111. 406. § 109] Assumption op Facts in Instructions. 253 in the heat of passion, and without design to cause death, by 'means and use of a dangerous weapon, to-wit, a wooden club,' feloniously killed the deceased, and that the killing was not justifiable or excusable, they will find him guilty of manslaughter in the third degree, is not objectionable as assuming that, the club was a dangerous weapon." 92 In a prosecution for rape, an instruction that the jurors should not, by their verdict, "lessen the protection the law wisely designs to throw around the innocent and virtuous female" is not erroneous as assuming that the prosecutrix was an innocent female, 93 and an instruction that if the jury found that the prosecutrix was ' ' under the age of fif- teen years, and was not the wife of defendant you will find the defendant guilty of rape as charged in the indictment ' ' does not assume that they were not married, or that she was under the age of fifteen. 94 Also, an instruction that. if the defendant was not present at the time and place of the alleged rape -of the prosecuting witness, or if they enter- tained a reasonable doubt as to his presence, then they would acquit him, has been held not erroneous as assuming that the prosecuting witness was violated. 95 § 109. Same — Negligence cases. The words "negligence if any" contained in an instruc- tion have been held to mean that the court would not have the jury infer that it assumed that defendant was negli- gent. 96 A charge that the plaintiff sues the defendant "in an action on the case and claims * * * damages for the negligence of the defendant in the operation of its train, whereby the plaintiff was thrown from the steps of its passenger coach and injured as set out in her declaration, 92— State v. Grayor, 16 Mo. App. 95 — State v. Campbell, 210 Mo. 558, aff'd 89 Mo. 600. 202, 14 Ann. Cas. 403. 93 — State v. Dean, 148 Iowa 566. 96 — Browder v. Northwestern Gas 94— Haywood v. State, 61 Tex. Cr. Light & Coke Co., 182 111. App. 26. App. 92. See also, §§ 105, 106, ante. 254 Instructions to Juries. [§ 109 which has been read in your hearing," is merely a state- ment of the complaint as made, and does not assume the negligence of the defendant. 97 In an action for injuries to a passenger on a street car, an instruction that if the car was derailed as alleged and if from the evidence by reason of such derailment, the plain- tiff received the injuries alleged, the verdict must be for the plaintiff does not assume that the defendant was negli- gent. 98 In an action for the killing of a minor child an instruc- tion requiring the jury to find that the electric car was allowed to strike and cause the child's death and requiring the jury to find that the car was so allowed "to strike * * * in consequence of the failure of the motor- man * * * to keep vigilant watch" is not erroneous as assuming that such . motorman failed to keep ' vigilant watch." An instruction that "if you believe that, by reason of the failure to so blow the whistle and ring the bell, plaintiff drove upon the track and his team was struck and killed" is not erroneous as assuming that defendant railroad failed to signal the approach of the train where other charges, submitted the question as to such failure. 1 An instruction that if you shall find that an ordinarily cautious and prudent person would not have attempted ' ' to stand between the rails ' ' and mount the pilot of the locomo- tive in the manner that the plaintiff did, has been held not erroneous as assuming a controverted fact but such charge left the jury to decide where the plaintiff was standing on the track. 2 97 — Florida B. Co. v. Dorsey, 59 1— Chicago, E. I. & G. Ey. Co. v. Fla. 260. Coffee, — Tex. Civ. App. — , 126 S. 98 — San Antonio Traction Co. v. W. 638. Probandt, — Tex. Civ. App. — , 125 2 — St. Louis Southwestern E. Co. S. W. 931. of Texas v. Ford, 56 Tex. Civ. App. 99— Klaiser v. United Eys. Co. of 521. St. Louis, 155 Mo. App. 428. §110] Assumption of Facts in Instructions. 255 An instruction, in an action for the failure to stop a train at a station, -which submitted the question whether the train stopped for a sufficient length of time for "B" to get on, has been held not erroneous as assuming that "B" was a man of ordinary prudence using due diligence to board the train. 3 An instruction that a servant ' ' did not accept risks which gre'w out of any defects in the road which rendered it more hazardous than reasonable, unless he had knowledge of the defects,", does not assume the existence Of defects. 4 In an action by a wife for the death of her husband an instructipn that "if you find for the plaintiff, then you should assess her damages" at such sum as would be a fair and reasonable compensation, etc., is not erroneous as as- suming that the death was caused by the injuries sustained by the husband. 5 § 110. Assumptions in opposition to evidence. The assumption of the establishment of ,a fact or state of facts in direct opposition to the "evidence, is of course error, 6 and requested instructions assuming such facts should be refused. 7 Thus, in an action for the death of ah infant caused by an electric car, an instruction that if the motorman saw the child leave the sidewalk and come into the street and stop before going to the track, - then the motorman was 3— Bing v. Atlantic Coast Line B. Tex. 22, 73 Am. Dec. 221; Texas Co., 86 S. C. 528. Land & Loan Co. V. Watson, 3 Tex. 4 — Taylor, B. & H. By. Co. v. Tay- Civ. App. 233. lor, 79 Tex. 104, 23 Am. St. Bep. 316. 7— A request for an instruction, 5 — Powell v. Union Pac. B. Co., 255 in an action of ejectment, that a Mo. 420. deed to a, certain person under a 6 — Michigan. Leslie v. Smith, 32 certain name is a transfer of rights Mich. 64. to a person having the same sur- Mississippi. Bowman v. .Roberts, name, but whom the evidence shows 58 Miss. 126. to- be a different person, is properly Missouri. Moffatt v. Conklin, 35 refused. Worley v. Hicks, 161 Mo. Mo. 453. 340. Texas. McCown y. Shrimpf, 21 256 Instkxjotions to Jukies. [§110 under no obligation to stop his car, was erroneous as assum- ing that such motorman saw the child leave the sidewalk, when he testified to the contrary. 8 § 111. Assumption of facts not supported by any evidence. Instructions must not assume the existence of facts of which there is no evidence or which are not proved, 10 and ordinarily the giving of such charges is reversible error. 11 Wherefore requests for instructions affected with this vice should be refused. 12 An instruction in a criminal case assuming the unpopu- 8 — Simon v. Metropolitan St. R. Co., 231 Mo. 65, 140 Am. St. Rep. 498. 9— See § 112, post. 10— Schmalfeld v. Peoria & E. By. Co,, 158 111. App. 335; Hughes v. Hughes, 133 111. App. 654. Where there is absolutely no evi- dence in the case upon which a find- ing of certain facts could be based, it is erroneous for the court to as- sume in the instructions the exist- ence of such facts. , Alabama. Kidd v. State, 83 Ala. 58. Arkansas. Little Bock & Ft. S. By. Co. v. Wells, 61 Ark. 354. California. People v. Lee Chuck, 74 Cal. 30, 15 Pac. 322. Illinois. Chicago Western Divi- sion By. Co. v. Mills, 91 111. 39; Bus- sell v. Minteer, 83 111. 150; Lennartz v. Popp, 175 111. App. 539. Indiana. Moore v. State, 65 Ind. 382. Michigan. Hood v. Olin, 68 Mich. 165; Hart v. Firzlaff, 67 Mich. 514; Brower v. Edson, 47 Mich. 91. Missouri. Gerren v. Hannibal & St. J. E. Co., 60 Mo. 405. New Hampshire. Hill v. Spear, 50 N. H. 253, 9 Am. Bep. 205. North Carolina. Lance v. Bum- bough, 150 N. C. 19. South Carolina. State v. Johnson, 85 S. C. 265. Tennessee. Hill v. Childress, 10 Yerg. 515. Texas. Holtzelaw v. State, 26 Tex. 682; Texas Land & Loan Co. v. Wat- son, 3 Tex. Civ. App. 233. 11— Alabama. Kidd v. State, 83 Ala. 58. Nebraska. Bowie v. Spajds, 26 Neb. 635; Newton Wagon Co. v. Diers, 10 Neb. 284. New Hampshire. Flanders v. Stark, 37 N. H. 424. Pennsylvania. Kelly v. Eby, 141 Pa. 176. Tennessee. Hill v. Childress, 10 Yerg. 515. 12 — California. Crawford v. Bob- erts, 50 Cal. 235; People v. Cotta, 49 Cal. 166. Illinois. Chicago Anderson Pressed - Brick Co. v. Beinneiger, 140 111. 334, 33 Am. St. Bep. 249; Chicago West- ern Division By. Co. v. Mills, 91 111. 39. Tennessee. Gulf Compress Co. v. Stuyvesant Ins. Co., 129 Tenn. 586. Texas. Flanagan v. Boggess, 46 Tex. 330. § 112] Assumption of Facts in Instextctions. 257 larity of the defendant, when not shown by the evidence, is erroneous 1S and it is error to give an instruction assum- ing that an admission has been made by the prosecution, which has not in fact been made. 14 So,> where there is no evidence before the court that any witness had sworn falsely, but the main witness for plain- tiff, before his final dismissal as a witness, asks leave to make a retraction and correction of part of his testimony, it is error to give in charge to the jury the maxim, falsus in uno, falsus in omnibus. 15 In a personal injury action, an instruction to find the de- fendant not guilty if the jury believe that a motorman was led to believe that deceased would stop a wagon before going on the track is properly refused where there is no evidence tending to prove such fact. 16 An instruction assuming the existence of a partnership between the parties, and stating the law of partnership, is erroneous, "where there is no evidence of such partner- ship; 17 and where there was no testimony of grossly un- skilled advice given by counsel (unless the failure to recover constituted such evidence), a charge "that, if the claimants made this claim under the advice of counsel, which was wrong and grossly unskillful," etc., this was held errone- ous, as charging upon a supposed state of facts which did not exist. 18 § 112. Assuming nonexistence of fact in absence of evi- dence. The court may properly assume that a fact has not been proved where there is no evidence tending to prove such 13 — Langdon v. People, 133 111. 17 — Freeman v. Exchange Bank, 382. 59 111. App. 197. 14^_p e ople v. Cotta, 49 Cal. 166. 18— Perkins v. Attaway, 14 Ga. 27. 15— Kay y. Noll, 20 Neb/ 380. 16 — Brisch v. Chicago City Ey. Co., 176 111. App. 341. Blashfield Vol. 1—17 258 Instructions to Juries. [§112 fact, and may direct the jury that there is no evidence to prove it. 19 § 113. Assuming facts by way of illustration. An instruction does not assume facts when it purports to declare only a principle of law, 20 and it is not improper for the court to assume facts merely in order to illustrate the application of a proposition of law pertinent to the case. 21 This is a common practice, and no in{elligent juror can be misled by such illustrations, 22 but it should be impressed upon the minds of the jury that such facts have not been proven in the ease, 23 and it is proper to refer the jury to tie testimony, and direct them to examine it for themselves, and to remind them that they are the exclusive judges of the facts. 24 19 — California. People v. Stern- berg, 111 Cal. 3, 43 Pae. 198. Georgia. Underwood v. American Mortgage Co., 97 Ga. 238. Illinois. Sharp v. Parks, 48 111. 511, 95 Am. Dee. 565. Indiana. State v. Banks, 48 Ind. 197. North Carolina. Willis v. Branch, 94 N. C. 142; McCombs v. North Carolina E. Co., 67 N. C. 193; Wells v. Clements, 48 N. C. 168; State v. Car-dwell, 44 N. C. 245; Redman v. Roberts, 23 N. C. 479. South Carolina. Fripp v. Wil- liams, Birnie & Co., 14 S. C. 510. Texas. Horan v. Long, 11 Tex* 230. 20 — Von Reeden v. Evans, 52 111. App. 209. 21 — California. People v. Wil- liams, 59 Cal. 674; People v. Camp- bell, 30 Cal. 312. Connecticut. Masters v. Town of Warren, 27 Conn. 293. Georgia. Central Railroad & Banking Co. v. Smith, 80 Ga. 526; McConnell v. State, 67 Ga. 635. Indiana. Bundy v. McKnight, 48 Ind. 503. Louisiana. State v. Obregon, 10 La. Ann. 799. Massachusetts. Melledge v. Bos- ton Iron Co., 5 Cush. 180. Miclligan. Gullikson v. Gjorud, 82 Mich. 503. Ohio. Gage v. Payne, Wright 678. Pennsylvania. Long v. Township of Milford, 137 Pa. 122. An illustration, not founded upon testimony, may be given in connec- tion with correct principles of law, unless it misleads. Parker v. Glenn, 72 Ga. 638; State v. Alverez, 7 La. Ann. 284. 22 — Masters v. Town of Warren, 27 Conn. 300. 23 — Masters v. Town of Warren, 27 Conn. 300; Bundy v. McKnight, 48 Ind. 503; Long v. Township of Milford, 137 Pa. 122. 24— Stephen v. State, 11 Ga. 225. § 113] Assumption of Facts in Instbuctions. 259 In one case it has been said that, where the court assumes the facts by way of illustration, this should be done by remarks of a general character, in order not to induce a particular verdict. 25 Error cannot be assigned where the facts assumed con- form to a theory of the case urged by the opposite party, 20 and in a criminal case the court may illustrate its instruc- tions to the jury by an hypothesis unfavorable to the pris- oner, provided the evidence justifies it, and need not say anything of an opposite state of facts, if there be no evi- dence of these facts before the jury. 27 The court may illustrate a case by an analogy; as, for instance, where the analogy is between a wife's authority to buy necessaries on her husband's credit, and the power to purchase supplies by one who is hired to run a hotel, 28 and the assumption of facts by way of illustration may also be illustrated by instructions as to the weight of positive and negative testimony. 29 Where an instruction is requested the court is not re- state, 19 Ga. 192. Venn, 35 Mich. may properly in- 25 — State v. Obregon, 10 La. Ann. 799. 26 — Long v. Township of Milford, 137 Pa. 122. 27 — Pressley v. 28 — Beecher v. 466. 29 — The court struct "that the existence of a fact testified to by one witness positively was rather to be believed than that it did not exist because of many witnesses testifying that they did not see or know of its having trans- pired, although they had the same opportunity for observation." Mc- Connell v. State, 67 Ga. 635. See also; eh. XXV, post, ' ' Cautionary In- structions. ' ' Instruction held erroneous. In an action against a city to re- cover for an injury received from a defect in a culvert an instruction "that positive evidence is entitled to more weight than negative evi- dence; and that, if twelve men were in a room where there was a clock, and one of them should swear he heard the clock strike, and the eleven should swear they did not hear it strike, then the jury, in such a case, should give a judgment for one against the eleven; and if H. and G. swear they saw a hole in the cul- vert in question, and twice as many witnesses, equally as credible, say they did not see holes in the culvert, then positive evidence should be taken by the jury," — is- objection- able, and not apt as an illustration, because it omits the element of the reasonableness of the fact testified to. City of Greenville v. Henry, 78 111. 150. 260 Instructions to Juries. [§113 quired to hypothetically illustrate in the language of a request. It may give the law as requested, leaving out all suppositive illustrations of the legal principles, if it sees fit to do so. 30 Where the court correctly states the law governing the case, but exception is taken to an illustration used by the court explanatory of a legal principle, the reviewing court will not narrowly view the illustration, if satisfied that, whether right or wrong, it was not calculated to mislead, and did not in fact mislead, the jury. 31 § 114. Assumption of admitted facts. It is not error to assume in an instruction, the existence of undisputed or admitted facts 32 as when facts are . adt mitted by the pleadings 33 or upon the trial 34 or are agreed 30— Whitley v. State, 66 Ga. 659. See also, Whiteomb v. Town of Fair- lee, 43 Vt. 671. 31— Wilson v. State, 33 Ga. 207. To same effect, see Masters v. Town of Warren, 27 Conn. 300. 32— O'Rourke v. Sproul, 241 111. 576, afE'g 147 111. App. 609; Shults v. Shults, 229 111. 420; Chicago City Ry. Co. v. Carroll, 206 111. 318, aff'g 102 111. App. 202; Walker v. Lewis, 140 Mo. App. 26. 33 — Richard Coke & Co. v. New Era Gravel & Development Co., — Tex. Civ. App. — , 168 S. W. 988. The existence of facts which are admitted by the pleadings may be properly assumed in the instructions. Wiley v. Man-a-to+wah, 6 Kan. Ill ; Wiley >v. Keokuk, 6 Kan. 94; Brown v. Emerson, 66 Mo. App. 63. 34 — Anderson v. Kinnear, 80 Wash. 638, 141 Pac. 1151. See Ellis v. Metropolitan St. R. Co., 234 Mo. 657; Burton v. Kansas City, 181 Mo. App. 427. It is proper to assume the exist- ence of facts which are treated by the parties during the trial as con- ceded facts, whether put in issue by the pleadings or not: Alabama. Madden v. Blythe, 7 Port. 258. California. People v. Phillips, 70 Cal. 61, 11 Pac. 493. Georgia. Johnson v. State, 30 Ga. 426. , Illinois. Hellyer v. People, 186 111. 550; St. Louis, J. & S. R. Co. v. Kirbb, 104 111. 345; Hanrahan v. People, 91 111. 142; Martin v. People, 13 111. 341. Indiana. Louisville, E. & St. L. C. R. Co. v. Utz, 133 Ind. 265. Iowa. McKenna v. Hoy, 76 Iowa 322.' Michigan. Dalm v. Bryant Paper Co., 157 Mich. 550; Burt v. Long, 106 Mich. 210; Mooney v. York Iron Co., 82 Mich. 263; Wright v. Towle, 67 Mich. 255. Missouri. Taylor v. . Scherpe & Koken Architectural Iron Co., 133 114] Assumption of Facts in Instructions. 261 upon by counsel 35 and an instruction which contains a statement by the judge of what facts are admitted or not contested is not objectionable as a charge on the facts. 30 This proposition is self-evident, as it is the province of the jury to determine the existence or nonexistence of dis- puted facts, and it would be absurd to require them to pass upon facts as to which there is no dispute, and which are admitted by the parties. Accordingly, instructions are held to be erroneous which treat as in issue and submit to the Mo. 349; Pope v. Kansas City Cable Ry. Co., 99 Mo. 400. ITorth Carolina. State v. Wil- liams, 47 N. C 194; State v. Rash, 34 N. C. 382, 55 Am. Dec. 420. South Carolina. Pickett v. Fidel- ity & Casualty Co., 60 S. C. 477. South Dakota. Duprel v. Collins, 33 S. D. 365. Texas. Pahey v. State, 27 Tex. App. 146; Thompson v. Johnson, 24 Tex. Civ. App. 246. Utah. Cooper v. Denver & R. G. R. Co., 11 Utah 46, 39 Pae. 478. What all parties to a litigation treat and assume as a, fact during the entire progress of the trial be- fore the court, the court, without error, may assume for convenience in drafting) its instructions to the jury. Taylor v. Scherpe & Koken Architectural Iron Co., 133 Mo. 349. See also, Hanrahan v. People, 91 111. 142; Martin v. People, 13 111. 341. A charge which states that plain- tiff brings the action as the successor of a receiver who died, and that plaintiff stands in the place of such receiver, is not a charge upon the facts, where the facts stated are ad- mitted or adjudicated. Pickett v. Fidelity & Casualty Co., 60 S. C. 477. By the plea of not guilty, the de- fendant puts in issue every material allegation of the indictment, and, before the jury can rightfully find him guilty, the people are bound to establish, by competent evidence, his guilt beyond all reasonable doubt. It is the province of the jury to deter- mine the weight of the evidence in the case, and what admissions, if any, have been made by defendant, and the effect thereof, and an in- struction that it is admitted by the defendant, etc., is error. Hellyer v. People, 186 111. 550. In' an action to recover personalty seized under attachment and sold under execution, an instruction as- suming that the plaintiff was a resi- dent of the state was proper though the pleadings raised an issue as to such residence, when the evidence presented no such issue. Duprel v. Collins, 33 S. D. 365. 35 — Where all the facts are agreed upon by counsel, it is not an invasion of the province of the jury to as- sume the existence of such facts. State v. Pritchard, 16 Nev. 101. 36— Mullaly v. Smyth, 96 S. C. 14; McLain v. Allen, 95 S. C. 152. As to charging with respect to mat- ters of fact or commenting on the weight of the evidence, see ch. XII, 262 Instructions to Jukies. [§ 114 jury facts which are admitted by the pleadings, 37 or upon the trial, 38 and an instruction assuming that such facts are still in issue may properly be refused. 39 "Where a party by his own admissions shows certain facts to be true, he cannot complain if the court assumes such facts in the instructions, 40 and in personal injury actions, instructions which assume that ,the plaintiff was injured are not erroneous, when the fact of injury is not questioned. 41 Where the fact of employment is in issue by the plead- ings, but such fact is admitted by the opposite party, the court may properly instruct the jury that the employ- ment is an established fact, 42 and it is not prejudicial error for the court in instructing the jury to refer to a written instrument signed by the defendant but not signed by the plaintiff, as a written contract, where both the pleadings and evidence of the plaintiff assert that the proposal made in the written instrument was orally accepted by the plain- 37 — Orth v. Clutz's Adm'r, 18 B. juries, the court may assume that Mon. (Ky.) 223. plaintiff suffered some pain and in- 38 — Blaul v. Tharp, 83 Iowa 665. jury, where the cause was tried on 39 — Stewart v. Nelson, 79 Mo. 522. ' the theory that she did suffer some 40 — If a party, by his own admis- injury, but that defendant was not sions, shows facts upon which the liable because 'of plaintiff 's contribu- court is asked to make a ruling tory negligence. Hamilton v. Great against him, it may assume such Falls St. By. Co., 17 Mont. 334, 42 facts to be true, because he cannot Pac. 860; 43 Pac. 713. contradict them. Pinnell v. Walker, An instruction assuming that a 48 111. App. 331; Waters' Lessee v. plaintiff was injured, but submitting Biggin, 19 Md. 536. the extent of his injuries to the jury, Where a defendant himself testi- is not erroneous when the fact of in- fies to a fact he cannot complain if jury was not controverted. Bell v. the court assumes his testimony to United Rys. Co. of St. Louis, 183 Mo. be true in its charge to the jury. App. 334. State v. Belknap, 44 Wash. 605, 87 An instruction which assumes the Pac. 934. plaintiff's suffering, injury and loss It is not prejudicial error to as- of time is not erroneous when such sume that a defendant struck a de- injury is not questioned or disputed, ceased person, where he admitted Hall v. Manufacturers' Coal & Coke such fact. State v. Ayers, 86 S. C. Co., 260 Mo. 351. 426. 42— Louisville, E. & St. L. C. B. 41 — In an action for personal in- Co. v. Utz, 133 Ind. 265; Cooper v. § 115] Assumption of Facts in Instkuctions. 263 tiff; 43 also, it is not error to charge that an illegal act has been committed by the defendant, when the answer admits facts that show that he committed acts which are illegal. 44 Where, on a trial for assault with intent to murder by shooting, the defense was insanity, and defendant "ad- mitted the shooting as charged, and that it was done under circumstances that would have constituted murder if the defense set up is not good," it was not error to instruct that, "if the defendant was not insane at the time of the shooting, then you ought to find him guilty. ' ' 45 Where a prisoner indicted for murder does not pretend that, "if guilty of the homicide, he is guilty of anything but murder, but relies in his defense solely upon the ground that he was not guilty of the homicide, the court may prop- erly assume that the homicide was murder. 46 If the instructions assume that certain facts are admitted by both parties, they will be sustained on appeal, in the absence of anything in thei record to show the contrary, 47 and a party cannot complain of the assumption of facts by the court, if the court has fallen into the error at the invi- tation of the party complaining, and through adopting the language of an instruction requested by him. 48 § 115. Assumption of facts supported by strong and uncon- tradicted evidence. As a general rule, where the evidence in support of cer- tain facts is conclusive and there is no evidence conflicting therewith, it is not error to assume the existence of such facts, or to state that they have been proved. 49 Denver & R. G. R. Co., 11 Utah 46, 559: Drinkout v. Eagle Machine 39 Pac. 478. Works, 90 Ind. 423; Hinds v. Har- 43 — McDermott v. Mahoney, 139 bou, 58 Ind. 121; Walsh v. Aetna Iowa 292. Life Ins. Co., 30 Iowa 133, 6 Am. 44— Wiley v. Keokuk, 6 Kan. 94. Rep. 664. 45— People v. Hobson, 17 Cal. 424. 48— City of Chicago v. Moore, 139 46— State v. Rash, 34 N. C. 382, 55 111. 201. Am. Dec, 420. 49— Alabama. North Alabama 47 — Weekes v. Cottingham, 58 Ga. Traction Co. v. Thomas, 164 Ala. 264 Instbuctions to Jubies. [§115 So, it has been held that, if a fact is shown by undisputed testimony, the court should treat the fact as established, and refuse to instruct as to the necessity of proof of such 191; Drennen v. Smith, 115 Ala. 396; Marx v. Leinkauff, 93 Ala. 453; Nelms v. Williams, 18 Ala. 650; Williams v. Shackelford, 16 Ala. 318; Gillespie v. Battle, 15 Ala. 276; Henderson v. Mabry, 13 Ala. 713. Arizona. Lujan v. State, — Ariz. — , 141 Pac. 706. Arkansas. Prescott & N. W. B. Co. v. Morris, 92 Ark. 365. California. People v. Phillips, 70 Cal. 61, 11 Pac. 493; People v. Mas- sersmith, 61 Cal. 246; Watson v. Damon, 54 Cal. 278. Georgia. Jones v. State, 65 Ga. 621. Illinois. Petersen v. Elgin, A. & S. Traction Co., 238 111. 403, aff'g 142 111. App. 34; People v. Casey, 231 111. 261; Cook County v. Harms, 108 111. 151; Mackie v. Webster Mfg. Co., 175 111. App. 385; City of Pax- ton v. Frew, 52 111. App. 393; Gar- retson v. Becker, 52 111. App. 255. Indiana. Chicago, St. L. & P. B. Co. v. Spilker, 134 Ind. 380; Smith v. State, 28 Ind. 321; Archer v. Os- temeier, 56 Ind. App. 385; Home Ins. Co. v. Marple, 1 Ind. App. 411. Iowa. Bowell v. Draper, 149 Iowa 725; State Vf Meshek, 61 Iowa 316; Hughes v. Monty, 24 Iowa 499; Thorp v. Craig, 10 Iowa 461. Kansas. State v. Mortimer, 20 Kan. 93; State v. Herold, 9 Kan. 194. Kentucky. Thompson v. Brannin, 19 Ky. L. Bep. 454. Michigan. GiUett v. Knowles, 97 Mich. 77; McDonnell v. Ford, 87 Mich. 198; Wisner v. Davenport, 5 Mich. 501. Minnesota. Alden v. City of Min- neapolis, 24 Minn. 254. Missouri. Phelps v. Conqueror Zinc Co., 218 Mo. 572; State v. Moore, 101 Mo. 316; Carroll v. Mis- souri Pac. By. Co., 88 Mo. 248; Bell v./ United Bys.- Co. of St. Louis, 183 Mo. App. 334; Warrington v. Bird, 168 Mo. App. 385; Kelly v. Bowane, 33 Mo. App. 440; Herriman v. Chi- cago & A. B. Co., 27 Mo. App. 435. Montana. Hogan v. Shuart, 11 Mont. 498, 28 Pac. 969. Nebraska. Gran v. Houston, 45 Neb. 813; Camp v. Pollock, 45 Neb. 771. Nevada. Menzies v. Kennedy, 9 Nev. 152. Pennsylvania. Com. v. Mudgett, 174 Pa. 211. South Carolina. Williams v. Con- nor, 14 S. C. 621. Texas. Western U. Tel. Co. v. Cooper. (Tex.), 20 S. W. 47; Trinity & S. By. Co. v. Lane, 79 Tex. 643; Blum v. Schram, 58 Tex. 524; Inter- national & G. N. B. Co. v. Stewart, 57 Tex. 166; Hermann v. Fenn, — Tex. Civ. App. — , 129 S. W. 1139; Western IT. Tel. Co. v.' Babon, — Tex. Civ. App. — , 127 S. W. 580; Missouri, K. & T. By. Co. of Texas v. Hawley, — Tex. Civ. App. — , 123 S. W. 726; Missouri, K. & T. By. Co. v. Bogers (Tex. Civ. App.), 40 S. W. 849; Beynolds v. Weinman (Tex. Civ. App.), 40 S. W. 560; Houston & T. C. B. Co. v. Berling, 4 Tex. Civ. ,App. 544. Washington. Edwards v. Terri- tory, 1 Wash. T. 195. Wisconsin. Engmann v. Immel, 59 Wis. 249. United States. Wiborg v. United States, 163 U. S. 632, 41 L. Ed. 289. §115] Assumption of Facts in Instructions. 265 fact, 50 and that it is error to submit such fact to the jury as being in dispute, 51 because this would tend to confuse and mislead the jury. 52 It has also been held that if » all the evidence on both sides tends to establish a fact, it should not be left to the jury as an open question, 53 since a charge in such case which in effect tells the jury that it is competent for them to find Where the evidence of a fact is positive and not questioned it is to be taken as an established fact and the charge of the court should pro- ceed upon that basis. International & G. N. E. Co. v.-Stewart, 57 Tex. 166. See also, Kelly v. Bowane, 33 Mo. App. 440. ' ' The rule which forbids the judge to charge upon the weight of evi- dence does not require or authorize him to assume as doubtful that which is clear and indisputable, or to assume hypotheses at variance with the certain fact." Wintz v. Morri- son, 17 Tex. 387. See also, State v. Tettaton, 159 Mo. 354. Where facts are undisputed or are of such a character that reasonable minds can draw therefrom but one inference or conclusion, it is not er- ror to assume such facts in an in- struction. Archer v. Ostemeier, 56 ■ Ind. App. 385. The court may, in its instructions, assume the truth of a .proposition which is established by undisputed evidence, and appears not to be con- troverted. Bell v. United Bys. Co. of St. Louis, 183 Mo. App. 334. 50— Muir v. Miller, 82 Iowa 700; Wright v. Hardy, 22 Wis. 334. 51 — It is not improper to re- fuse instructions assuming the exist- ence of material facts in issue, al- though they were clearly proven by the evidence. Alabama. Marks v. Robinson, 82 Ala.«69. Illinois. Hauk v. Brownell, 120 111. 161. Michigan. Hunt v. Supreme Coun- cil, O. C. F., 64 Mich. 671, 8 Am. St. Eep. 855; Seligman v. Ten Eyek's Estate, 49 Mich. 109; Township of Medina v. Perkins, 4§ Mich. 70; Lange v. Perley, 47 Mich. 352; Eich- ardson v. Coddington, 45 Mich. 338; Chadwick v. Butler, 28 Mich. 349; Pennsylvania Min. Co. v. Brady, 16 Mich. 332. New York. White v. Stillman, 25 N. Y. 541. Ohio. Bellefontaine Ey. Co', v. Snyder, 24 Ohio St. 670. Pennsylvania. Com. v. Euddle, 142 Pa. 144; McFall v. McKeesport & Y. Ice Co., 123 Pa. 253. Texas. Wintz v. Morrison, 17 Tex. 372, 67 Am. Dec. 658; Texas & P. Ey. Co. v. Moore, 8 Tex. Civ. App. 289; Bonner v. Green, 6 Tex. Civ. App. 100. Wisconsin. Gibbons v. Wisconsin Val. E. Co., 62 Wis. 546. United States. Goodman v. Si- monds, 20 How. 359, 15 L. Ed. 939. 52 — Township of Medina v. Per : kins, 48 Mich. 70; Wintz v. Morrison, 17 Tex. 372, 67 Am. Dec. 658. 53 — Douglass v. Geiler, 32 Kan. 499, 4 Pae. 1039; Gavigan v. Evans, 45 Mich. 597; Druse v. Wheeler, 26 Mich. 189; Crossman v. Lurman, 57 App. Div. (N. Y.) 393. 266 Instructions to Juries. [§115 either way — for or against the existence of the fact so proved — assumes that there is evidence in the case tending as well to disprove such fact as to prove it. 54 There are some decisions, however, which hold that the assumption of facts supported by strong and uncontradicted evidence, is harmless error and not ground for reversal, 55 and in one criminal case it has been said to be better for the court to ' avoid assuming any material fact as proved, no matter how clearly such, fact seems to be established. 56 The general rule that the court may assume the existence of facts when supported by strong and uncontradicted evidence may be illustrated by instructions in personal in- jury actions which assume the fact of injury and damage, 57 the age of the person injured, 58 that the person injured was 54 — Druse v. Wheeler, 26 Mich. 189. 55 — Illinois. Gerke v. Fancher, 158 111. 375; City of Lanark v. Dougherty, 45 111. App. 266. Indiana. Koerner v. State, 98 Ind. 7; Astley v. Capron, 89 Ind. 167; Ful- len v. Coss, 82 Ind. 548. Kentucky. Turpin's Heirs v. Mc- Kee's Ex'rs, 7 Dana 305. Mississippi. Cook v. Whitfield, 41 Miss. 541; Lamar v. Williams, 39 Miss. 342; Heirn v. MoCaughan, 32 Miss. 17, 66 Am. Dee. 588n. Missouri. Walker v. City of Kan- sas, 99 Mo. 647; Fields v. Wabash, St. L. & P. Ry. Co., 80 Mo. 206;Uald- well v. Stephens, 57 Mo. 589; Barr v. Armstrong, 56 Mo. 577. Montana. Mattingly v. Lewisohn, 13 Mont. 508, 35 Pae. 111. Oklahoma. Bleecker v. Miller, 40 Okla. 374, 138 Pac. 809. Tennessee. Farquhar v. Toney, 5 Humph. 502. Texas. No harm is done by sub- mitting undisputed facts to the jury. Atchison, T. & S. F. Ry. Co. v. Cu- niffe (Tex. Civ. App.) 57 S. W. 692. 56— People v. Dick, 32 Cal. 213. 57 — Where there is no conflict in the evidence as to a plaintiff 's injury and damage, such facts may be as- sumed. Town of Sellersburg v. Ford, 39 Ind. App. 94. Where an injury is of such a na- ture that pain and anguish necessar- ily follow its infliction, an instruc- tion may assume that there was such pain and mental anguish. Dunn v. Northeast Electric Ry. Co., 81 Mo. App. 42. 58 — Where the age of plaintiff is not a contradicted fact,, the court may assume that he is an old or young man, as the case may be, in an action for personal injuries. Ber- tram v. People 's Ry. Co., 154 Mo. 639. Where the exact age of a child, for whose death an action is brought, is not material, and her age is not in dispute, the court may assume that she is a young girl, or of a certain age. Schmidt v. St. Louis R. Co., 163 Mo. 645. But an instruction assum- 115] Assumption of Facts in Instructions. 267 a passenger, 59 the place of injury, 60 or similar facts. 01 It has also been held that the court may state the value of a horse which was killed where no issue was raised upon that question and the evidence was positive and undis- puted, 62 and the value of goods stolen may be stated where the evidence thereto is conclusive. 63 It is not error for the court to assume in an instruction, ing that a child fifteen years old was "of tender years, and imperfect dis- cretion," was held erroneous. Day v. 'Citizens' Ey. Co., 81 Mo. App. 471. 59 — It is not error to assume that a deceased person was a passenger, where the evidence .as to such fact is uncontroverted and conclusive. Petersen v. Elgin, A. & S. Traction Co., 238 111. 403, aff'g 142 111. App. 34. 60 — Where the undisputed evi- dence shows that a car was stopped at a certain place for allowing pas- sengers to get on and off the car, such fact may be assumed. Birming- ham Ey. Light & Power Co. v. Mc- Curdy, 172 Ala. 488. 61 — Alighting from train — As- sumption that passenger was as- sisted. In an action for injuries sustained in alighting from a train where the evidence did not controvert the plaintiff's testimony as to assistance rendered her, the court had a right to assume in his charge that she wa,s assisted. St. Louis Southwestern Ey. Co. v. Shipley, — Tex. Civ. App. — , 126 S. W. 952. Asleep on railroad — Assumption of position of person injured. In an action for the death of a person killed while asleep on a rail- road track, where there was no con- flict as to the relative elevation of the intestate's head, such fact might be assumed. Louisville & N. E. Co. v. Holland, 173 Ala. 675. Collision — Assumption that street car was lighted. In an action for injuries sustained in a collision between a street car and an automobile, the court may as- sume that the street car was lighted on the inside, the evidence as to sucli fact being clear and undisputed. Colborne v. Detroit United Ey., 177 Mich. 139. Master and servant — Assumption that servant would he injured. An assumption that injury to a servant should have been anticipated by an engineer from the act of mov- ing his engine held proper where the evidence conclusively showed that such engineer knew the servant was engaged in the work of emptying the ash pan.- Missouri, K. & T. Ey. Co. of Texas v. Hampton, — Tex. Civ. App. — , 142 S. W. 89. Municipal corporations — Assump- tion of injury and unguarded ditch. A charge assuming that a plaintiff fell into an open ditch in a street, and that the municipal authorities had reasonable notice thereof and failed to provide a barrier was not erroneous where such facts were proved by the concurring testimony of a number of witnesses without contradiction. City of Montgomery v. Wyche, 169 Ala. 181. 62 — Chapin v. Ann Arbor E. Co., 167* Mich. 648. 63 — State v. Fleetwood, 111 Minn. 70. 268 Instructions to Juries. [§115 the existence of a collateral fact, established by uncontra- dicted evidence, which tends to prove one of the constituent elements of a crime, 64 and where the fact that a crime was committed is proved beyond any manner of doubt by evi- dence which there is neither fact, circumstance or testi- mony to contradict,, an instruction assuming such fact is not erroneous when it does not assume that the defendants committed the crime. 63 The mere fact that the evidence tending to prove a fact is uncontradicted will not always justify the court in as- suming the existence of such fact, 66 and a fact that must be proved affirmatively is not established by the absence of evi- dence to the contrary. 67 Where the credibility of witnesses is involved, the court should not take the question from the jury by assuming the fact in the instructions. 68 Also, where the fact depends upon inferences to be drawn 64— Welsh v. State, 60 Neb. 101. 65— People v. Spira, 264 111. 243. 66— Alabama. American Oak Ex- tract Co. v. Eyan, 112 Ala. 337; Jonas v. Field, 83 Ala. 449; Rhodes v. Lowry, 54 Ala. 4. California. People v. Webster, 111 Cal. 381, 43 Pac. 1114. Iowa. Saar v. Fuller, 71 Iowa 427. Maryland. Charleston Insurance & Trust Co. v. Corner, 2 Gill 411. New York. Merchants' Exch. Nat. Bank v. Wallach, 20 Misc. 309. Texas. Byers v. Wallace, 87 Tex. 503. This principle was well illus- trated in the following case: On a prosecution for rape, the testimony of the prosecuting witness that she was under the age of consent was un- contradicted. The refusal of the trial judge to assume that she was under the age of consent in his in- structions was sustained on appeal, for the following reasons: "A jury in a criminal case is not bound to believe the uncontradicted statement of a witness. * * * The conduct of this witness when upon the stand may have shown her to have been lying. Her appearance may have shown her to have been Of mature years. The inherent improbabilities of her testimony may have placed it beyond the pale of belief. Would such uncontradicted testimony be conclusive if the witness, by her ap- pearance, was shown to, be wrinkled and gray with age?" People v. Webster, 111 Cal. 381, 43 Pac. 1114. In another case, where only one .person testified to the value of cer- tain property, it was held that it could not be assumed that his esti- mate was correct, though his testi- mony was uncontradicted. American Oak Extract Co. v. Eyan, 112 Ala. 337. 67— Byers v. Wallace, 87 Tex. 503. 68— Saar v. Fuller, 71 Iowa 427. § 115] Assumption of Facts in Instructions. 269 from other facts in evidence, it is improper for the court to draw the inference and assume the fact, although there is no conflict in the evidence, as it is the exclusive province of the jury to determine what inferences shall be drawn. 69 If an instruction assumes the existence of facts, it will be presumed correct on appeal, if the record shows no con- flict in the evidence as to the fact assumed. 70 See also, §§60 et seq., ante, "Ques- witness is for the jury. Turner v. tions of law and fact." Grobe, 24 Tex. Civ. App. 554. An instruction assuming the ex- 69 — Schulz v. Schulz, 113 Mich, istence of a material fact, though 502. based upon the uncontradicted testi- 70 — People v. Lee Sare Bo, 72 Cal. mony of the plaintiff, is erroneous, 623, 14 Pa,c. 310; Patchell v. Jaqua, since the credibility of an interested 6 Ind. App. 70., CHAPTER XII. Charging with Respect to Matters of Fact, or Comment- ing on Weight of Evidence. § 116. Jurisdictions where practice is prohibited. § 117. Same — Illustrations of instructions violating prohibition in general. § 118. Same — Miscellaneous instructions violating prohibition. §119. Same — Instructions in negligence cases violating prohibition. § 120. Same — Instructions as to damages violating prohibition. § 121. Same — Instructions violating prohibition in criminal eases. § 122. Same — Instructions held not to violate prohibition in general. § 123. Same — Miscellaneous instructions not violating prohibition. § 124. Same — Instructions in negligence cases not violating prohibition, § 125. Same — Instructions in criminal cases not violating prohibition. § 126. Same — Curing error by other instructions. § 127. Same — Indicating opinion by questions asked the jury. § 128. Same — Violation of rule otherwise than by express instructions. § 129. Jurisdictions where practice is permissible, or is not prohibited. § 130. Same — How strong an expression of opinion is permissible. § 131. Same — Necessity of expressing opinion. § 132. Same — Necessity of instructing that opinion is merely advisory. § 133. Same — Effect of erroneous opinion. § 134. Same — When expression of opinion is ground for reversal. § 116. Jurisdictions where practice is prohibited. In the majority of the states of the Union, the trial courts are not permitted to comment on the evidence, in charging the jury, or to state what it does or does not tend to prove ; or to express any opinion as to the weight of the evidence or any part of it. 1 This was not the rule at common law, 1 — Alabama. Gafford v. State, 111 Ark. 457; Cameron v. Vander- 125 Ala. 1; Higginbotham v. Higgin- griff, 53 Ark. 381; Keith v. State, 49 botham, 106 Ala. 314; Steele v. State, Ark. 439. 83 Ala. 20; Tubb v. Madding, Minor California. Const., art. VI, § 19; 130. Pen. Code, § 1126; People v. Mac- Arkansas. McLemore v. State, Donald, 167 Cal. 545, 140 Pac. 256; (270) § 116] Chabging on Facts ob Weight of Evidence. 271 where the judge was something more than a mere umpire, In re Gird's Estate, 157 Cal. 534, 137 Am. St. Eep. 131, 108 Pae. 499; People v. Grimes, 132 Cal. 30, 64 Pae. 101; People v. O'Brien, 130 Cal. 1, 62 Pae. 297; People v. Verenesen- eckockockhoff, 129 Cal. 497, 58 Pae. 156; 62 Pae. Ill; People v. Cowgill, 93 Cal. 596, 29 Pae. 228; People v. Barry, 31 Cal. 357; Eyan v. Oakland Gas Light & Heat Co., 10 Cal. App. 484, 102 Pae. 558. - Florida. Florida Bast Coast E. Co. v. Carter, 67 Fla. 335; Florida E. Co. v. Dorsey, 59 Fla. 260; Adams v. State, 28 Fla. 511; Williams v. Dickenson, 28 Fla. 90; Ferguson v. Porter, 3 Fla. 27. Georgia. ' Bourquin v. Bourquin, 110 Ga. 440; Florida, C. & P. E. Co. v. Lucas, 110 Ga. 121; Eyder v. State, 100 Ga. 528, 38 L. E. A. 721n, 62 Am. St. Eep. 334. Illinois. Eice & Bullen Malting Co. v. International Bank, 185 111. 422, aff'g 86 111. 136; New York, C. & St. L. E. Co. v. Blumenthal, 160 111. 40; Chicago & A. E. Co. v. Eobin- son, 106 111. 142; Frame v. Badger, 79 111. 441; Humphreys v. Collier, 1 111. 297; Dowd v. Chicago City Ey. Co., 153 111. App. 85; Clark v. Smith, 87 111. App. 409; Lake Shore & M. S. Ey. Co. v. Taylor, 46 111. App. ,506. Indiana. Indianapolis Abattoir Co. v. Neidlinger, 174 Ind. 400; Ohio & M. Ey. Co. v. Pearey, 128 Ind. 197; Fulwider v. Ingels, 87 Ind. 414; Wood v. Deutchman, 75 Ind. 148; Chamness v. Chamness, 53 Ind. 301; Fassnacht v. Emsing Gagen Co., 18 Ind. App. 80. Iowa. Carroll v. Chicago, St. P., M. & O. Ey. Co. (Iowa) 84 N. W. 1035; State ,v. Carter, 112 Iowa 15; State v. Dorland, 103 Iowa 168; Lei- ber v. Chicago, M. & St. P. Ey. Co., 84 Iowa 97; Nimon v. Eeed, 79 Iowa 524; Houston v. State, 4 G. Greene 437. Kansas. Lorie v. Adams, 51 Kan. 692, 33 Pae. 599; Cavender v. Eober- son, 33 Kan. 626, 7 Pae. 152; State v. Potter, 16 Kan. 80; City of Junc- tion City v. Blades, 1 Kan. App. 85, 41 Pae. 677. Kentucky. Louisville & N. E. Co. v. Lynch, 137 Ky. 696; Carter's Ex'rs v. Carter, 10 B. Mon. 327; Brady v.. Com., 11 Bush 285; Hurl; v. Miller, 3 A. K. Marsh. 337. Louisiana. State v. King, 135 La. 117; State v. Hahn, 38 La. Ann. 169; ' State v. Jackson, 35 La. Ann. 769; Eiviere v. McCormick, 14 La. Ann. 139; State v. Smith, 11 La. Ann. 633, 66 Am. Dee. 208. Prior to 1852, at which time a statute prohibiting trial courts from charging as to mat- ters of fact was enacted, an instruc- tion on the weight of the evidence was permissible. See State v. Green, 7 La. Ann. 518; State' v. Eoger, 7 La. Ann. 382. Maine. State v. Benner, 64 Me. 267. This decision is under a statute, the practice of charging on the weight of the evidence tieing per- missible formerly. Stephenson v. Thayer, 63 Me. 143; State v. Eeed, 62 Me. 129; Hayden v. Bartlett, 35 Me. 203; Gilbert v. Woodbury, 22 Me. 246. Maryland. Miller v. Miller, 41 Md. 623; Mason v. Poulson, 40 Md. 355; Chipman v. Stansbury, 16 Md. 154. Massachusetts. Com. v. Briant, 142 Mass. 463, 56 Am. Eep. 707; Com. v. Foran, 110 Mass. 179; Com. v. Lar- 272 Instructions to Jubies. [ § 116 and was entitled to state his opinions upon the evidence, and rabee, 99 Mass. 413. These decisions are under Gen. St. Mass. c. 115, § 5. Prior to the enactment of that stat- ute it was customary in this state to comment on the evidence and charge on the weight thereof. Com. v. Child, 10 Pick. 252; Buckminster v. Perry, 4 Mass. 594; Mansfield v. Corbin, 4 Cush. 213; Davis v. Jenney, 1 Mete. 221; Eddy v. Gray, 4 Allen 435. Mississippi. Kearney v. State, 68 Miss. 233; Daniel v. Daniel (Miss.), 4 So. 95; Whitney v. Cook, 53 Miss. 551; Wesley v. State, 37 Miss. 327, 75 Am. Dec. 62. Missouri. Granby • Mining & Smelting Co. v. Davis, 156 Mo. 422; State v. Smith, 53 Mo. 267; State v. Hundley, 46 Mo. 414; Choquette v. Barada, 28 Mo. 491; Labeauine v. Dodier, 1 Mo. 618; Booker v. South- west Missouri B. Co., 144 Mo. App. 273; Turner v. Snyder, 139 Mo. App. 656; Milligan v. Chicago, B. & Q. R. Co., 79 Mo. App. 393; Hayden v. Parsons, 70 Mo. App. 493. Montana. State v. Mahoney, 24 Mont. 281, 61 Pac. 647; Knowles v. Nixon, 17 Mont. 473, 43 Pac. 628; State v. Sullivan, 9 Mont. 174, 22 Pac. 1088. Nebraska. Smith v. Meyers, 52 Neb. 70; Village of Culbertson v. Holliday, 50 Neb. 229; Murphey v. Virgin, 47 Neb. 692. Nevada. State v. Tickel, 13 Nev. 502; State v. Ah Tong, 7 Nev. 148. North Carolina. State v. Ed- wards, 126 N. C. 1051; State v. Brewer, 98 N. C. 607; Weisenfield v. McLean, 96 N. C. 248; Wells v. Clements, 48 N. C. 168; Beed v. Shenck, 13 N. C. 415. North Dakota. Territory v. O'Hare, 1 N. D. 30. Oklahoma. Kirk v. Territory, 10 Okla. 46, 60 Pac. 797. Oregon. State v. . McAllister, 67 Ore. 480, 136 Pac. 354; State v. Daly, 16 Ore. 240, 18 Pac. 357; Meyer v. Thompson, 16 Ore. 194, 18 Pac. 16. South Carolina. Moore v. Cum- mings, 87 S. C. 166; State v. Smalls, 98 S. C. 297; Martin v. Columbia St. Railway, Light & Power Co., 84 S. C. 568; State v. Godfrey, 60 S. C. 498; State v. Whittle, 59 S. C. 297; State v. Caddon, 30 S. C. 609; State v. Smalls, 24 S. C. 591; Woody v. Dean, 24 S. C. 504; Pol- son v. Ingram, 22 S. C'545. Prior to the time when Const. S. C. 1868, art. IV, § 26, went into effect, a charge on the weight of the evi- dence was permissible. See State v. Smith, 12 Rich. Law 430; Verdier v. Verdier, 8 Rich. Law 135; Dev- lin v. Killcrease, 2 MeMul. 428; State v. Bennet, 2 Treadw. Const. 692. Tennessee. Earp v. Edgington, 107 Tenn. 23; Citizens* St. By. Co. v. Burke, 98 Tenn. 650; Fitzpatrick v. Pain, 3 Coldw. 15; Roper v. Stone, Cooke 499; S. E. Jones & Son v. Cherokee Iron Co., 14 Lea 157. Texas. Stooksbury v. Swan, 85 Tex. 563; Johnson v. Brown, 51 Tex. 65; Pharr v. State, 7 Tex. App. 472; Butler v. State, 3 Tex. App. 48; Johnson v. Hyltin, — Tex. Civ. App. — , 133 S. W. 293; G. A. Kelly Plow Co. v. London, — Tex. Civ. App. — , 125 8. W. 974; St. Louis Southwest- ern By. Co. of Texas v. Taylor, — Tex. Civ. App. — , 123 S. W. 714; Texas & P. By. Co. v. Durrett, 26 Tex. Civ. App. 268; City of San § 116] Charging on Facts oe Weight of Evidence. 273 what it tended to prove, 2 but the practice is expressly pro- hibited by constitutional or statutory provisions. 3 The real object of the various enactments is to leave the decision of all questions of fact to the jury entirely unin- fluenced by any expression of opinion by the judge, 4 and if such opinion is expressed or even intimated, whether in- tentionally or unintentionally, a new trial should be granted. 5 Antonio v. Porter, 24 Tex. Civ. App. 444; City of Dallas v. Beeman, 23 Tex. Civ. App. 315; Galveston, H. & S. A. By. Co. v. English (Tex. Civ. App.), 59 S. W. 626; Fulcher v. White (Tex. Civ. App.), 59 S. W. 628; Meadows v. Truesdale (Tex. Civ. App.), 56 S. W. 932; Barton v. Stroud-Gibson Grocer Co. (Tex. Civ. App.), 40 S. W. .1050; Kildow v. Iriek (Tex. Civ. App.), 33 S. W. 315. Utah. Schuyler v. Southern Pac. Co., 37 Utah 581, 109 Pac. 458; Ev- ans v. Oregon Short Line B. Co., 37 Utah 431, Ann. Cas. 1912 C 259n, 108 Pac. 638. Virginia. Tyler v. Chesapeake & O. E. Co., 88 Va. 389; McDowell's Ex'r v. Crawford, 11 Gratt. 378; McKinley v. Ensell, 2 Gratt. 333; MeBae v. Scott, 4 Band. 463; Boss v. Gill, 1 Wash. 88. Washington. In re Westlake Ave., 60 Wash. 549, 111 Pac. 780; Leonard v. Territory, 2 Wash. T. 381, 7 Pac. 872;' Bardwell v. Ziegler, 3 Wash. St. 34, 28 Pac. 360. West Virginia. State v. Greer, 22 W. Va. 801; State v. Hurst, 11 W. Va. 75. Wisconsin. Hempton v. State, 111 Wis. 127. See also, cases cited to more spe- cific propositions in the succeeding sections of this article. Under Const. 1895, art. V, §26, Blashfield Vol. 1—18 "Judges shall not charge juries in respect to matters of fact but shall declare the law." State v. Smalls, 98 S. C. 297. As to rule in Michigan and New Hampshire, see § 129, post. 2 — See § 129, post. 3 — See the codes and statutes of the various states, and the cases cited in^the preceding, note. 4— State v. Smalls, 98 S. C. 297. "The judge's position would nat- urally add great weight to any opinion he might express upon any question of fact arising in a case and for this reason he should care- fully refrain and avoid expressing any opinion that he may have formed from the facts as to the force, weight and effect, leaving it to the jury to draw their own con- clusions and not impress upon them any impression that the testimony may have made in the mind of the judge." State v. Smalls, 98 S. C. 297. A judge must carefully avoid ex- pressing an opinion on the facts, leaving it to the jury to draw their own conclusions, entirely unbiased by any impression which the testi- mony may make upon the mind of the judge. He must not in any way indicate his opinion of the facts to the jury. State v. Addy, 28 S. C. 4. 5— State v. James, 31 S. C. 218. 274 Instructions to Juries. [§116 "Among lawyers nothing is better known than that juries rely with great confidence on the integrity and fairness of judges and upon the correctness of their views. For this reason a judge should be careful not to throw the weight of his judicial position into a case either for or against a de- fendant." 6 Under a statute prohibiting an intimation of any ' ' opin- ion whether a fact is fully or sufficiently proven," the "facts" referred to have been held to mean those in dis- pute on which the liability of the defendant depends. 7 It is improper to single out some part of the evidence and tell the jury what weight should be given to it, 8 and, a charge is perfectly unexceptionable only when the judge confines himself to the duty of setting forth the law appli- cable to the case, without either expressing or intimating any opinion as to the weight of the evidence, or the credi- bility of statements made by parties or other witnesses. 9 6 — People v. Conboy, 15 Cal. App. 97, 113 Pac. 703. A judge cannot be too cautious in a criminal ease in avoiding all in- terference 'with the conclusions of the jury upon the facts. In such cases a word, a look, or a tone may sometimes be of great or even of controlling influence. People v. Williams, 17 Cal. 142. Juries, especially in cases which are strongly litigated upon the facts, watch with anxiety to gather from the court some intimation as to what the judge thinks should be their finding in the facts. They do not usually comprehend the line of demarcation which separates the duties of the court from those of the jury. Hair v. Little, 28 Ala. 236. 7— Laws 1796, ch. 452 (now Re- visal 1905, §535). State v. Rogers, 168 N. C. 112. The prohibition against express- ing an opinion upon the facts only applies to those facts which are pertinent to the issues to be decided by the jury and the appellant must show that the remark was preju- dicial to him. McDonald v. Mac- Arthur Bros. Co., 154 N. C. 11. 8 — Since the enactment of Rev. St. 1909, § 5244 (March 21, 1835) it has been regarded as an obnoxious practice for trial courts to single out some part of the evidence and tell the jury what weight should be given to it. State v. Creeley, 254 Mo. 382. See also, ch. XIV, post, Giving Un- due Prominence to Evidence, Issues and Theories. 9— Ross v. State, 29 Tex. 500. The court cannot legally indicate his opinion, either expressly or im- pliedly, intentionally or otherwise, as to the credibility of the witnesses^ or as to the truth of any fact in is- sue, and the subject of the evidence. The whole matter of finding the facts § 117] Charging on Facts ob Weight of Evidence. 275 In some states, however, there are exceptions to the gen- eral rule, due to statutes requiring comment on certain evidence. 10 §117. Same— Illustrations of instructions violating pro- hibition in general. The rule against commenting on the evidence or express- ing an opinion as to its weight is frequently violated. The cases are almost innumerable in which the question has been passed upon. Usually the error is committed through inad- vertence, and the question of whether an instruction is erro- neous depends upon the construction of the language used. Accordingly it has been thought proper to give a large number of instructions which have been held erroneous, or which have been held proper. Such a collection is neces- sarily diverse in nature, but the more general instructions such as those dealing with evidence and witnesses will be treated in this section. Similar charges such as those which arise in negligence or criminal cases are treated in separate sections. In general, it may be said that it is improper to announce to the jury what is the better evidence in the case, or what the jury may so regard, 11 to give instructions as to the rela- of the case must be left entirely to that it was insolvent when they re- the jury, without suggestions or lead- ceived deposits, and in such case it ings by the court. State v. Wil- is proper for the court to tell the liams, 31 S. C 238. jury that the failure of the bank 10 — Under Bev. St. Mo. 1909, makes out a prima facie ease of § 5231, courts are required to instruct knowledge, though this is a direct ou the legal inference or presump- comment on the evidence. State v. tion to be drawn from evidence of Creeley, 254 Mo. 382. good character of a defendant, thus 11 — In re Gird's Estate, 157 Cal. directly commanding the courts to 534, 137 Am. St. Bep. 131, 108 Pac. comment upon a certain class of 499 ; Chicago & A. B. Co. v. Eobinson, evidence. State v. Creeley, 254 Mo. 106 111. 142; Toledo, W. & W. By. Co. 382. v. Brooks, 81 111. 245; Indianapolis Under Bev. St. Mo. 1909, §4585, Abattoir Co. v. Neidlinger, 174 Ind. proof that a bank has failed is made 400; Millner v. Eglin, 64 Ind. 197, prima facie evidence that the of- 31 Am. Bep. 121; State v. Elkins, 63 fleers of such bank had knowledge Mo. 159; Texarkana Gas & Electric 276 Instructions to Juries. [§117 tive value of direct and circumstantial evidence; 12 or to require the jury to give more credit to one class of testimony than another; 13 such as positive and negative testimony; 14 to instruct that designated testimony is entitled to great weight; 15 is weighty and strong; 16 or that "full weight" should be given designated testimony, instead of "the weight to which, in their opinion, such testimony is justly Co. v. Lanier, — Tex. Civ. App. — , 126 S. W. 67. 12 — A party should not ask for instructions relating to the weight to be given circumstantial evidence introduced by his adversary. Such a request comes under the general rule that it is dangerous to single out a particular line of evidence, and to instruct, as to its Weight. Carroll v. Chicago, St. P., M. & O. Ry. Co. (Iowa), 84 N. W. 1035. Since the rule of circumstantial evidence covers all the facts in a case, an instruction which ■ singles out one fact . in the ease and in- structs the jury with reference to circumstantial evidence as that fact alone, is on the weight of evidence. Beard v. State, 57 Tex. Cr. App. 323. 13— Kirk v. Territory, 10 Okla. 46, 60 Pae. 797. Instruction that it is duty of jury to give more weight to testimony of disinterested witness than one who is interested, or party testifying in his own behalf, is properly refused. Louisville & N. R. Co. v. Watson, 90 Ala. 68, 13 Am. Neg. Cas. 27. 14 — It is improper to instruct the jury that positive testimony is en- titled to greater weight than nega- tive testimony, where the witnesses are equal in credibility and oppor- tunity to know the facts, as the weight of such testimony is exclu- sively for the jury. Milligan v. Chi- cago, B. & Q. R. Co., 79 Mo. App. 393. See also, Metropolitan R. Co. v. Martin, 15 App. Cas. (D. C.) 552. A charge to the effect that the tes- timony of a witness testifying posi- tively is entitled to more weight than that of one who testifies nega- tively is open to serious criticism, unless it embraces an instruction that the jury in weighing the testi- mony of such witnesses should con- sider and pass upon the question of their credibility. Wright v. West- ern & A. R. Co., 139 Ga. 343. 15— Alabama. Steele v. State, 83 Ala. 20. Florida. Williams v. Dickenson, 28 Fla. 90. , Georgia. Bourquin v. Bourquin, 110 Ga. 440; Ryder v. State, 100 Ga. 528, 38 L. R. A. 721n, 62 Am. St. Rep. 334. Missouri. State v. Hundley, 46 Mo. 414. Montana. State v. Gleim, 17 Mont. 17, 31 L. R. A. 294, 52 Am. St. Rep. 655, 41 Pac. 998. Nebraska. Smith v. Meyers, 52 Neb. 70. South Carolina. To tell the jury what force they should give to evi- dence of threats or to any other evi- dence on a contested-issue of fact is beyond the province of the judge. Farmer v. Sellers, 89 S. C. 492. 16 — -Cecil v. Johnson, 11 B. Mon. (Ky.) 35; Earp v. Edgington, 107 Tenn. 23. 117] Chakging on Facts ok Weight of Evidence. 277 entitled"; 17 to state that one kind of evidence cannot out- weigh another kind; 18 or that certain evidence is strong evidence to disprove. 19 It is also improper to state that there is a conflict in the evidence, when that is denied; 20 to state what the evidence tends to show; 21 to state that the evidence shows certain facts; 22 to assume the existence of a material fact; 23 to intimate that a fact has or has not been established; 24 to express an opinion of the legal value of a fact testified to; 25 to state that the evidence preponderates in favor of one side of the' case; 26 that, from the facts proven, 17— Davis v. Hays, 89 Ala. 563. 18— Bowie v. Maddox, 29 Ga. 285, 74 Am. Dec. 61. 19 — Jenkins v. Tobin, 31 Ark. 307. 20— Baoul v. Newman, 59 Ga. 412; Black v. Thornton, 30 Ga. 361. Compare People v. Flynn, 73 Cal. 511, where it was held that "the mere statement by the court in its instructions that there is a conflict in the evidence in certain respects is not an expression of opinion upon the weight of the evidence." 21 — City of Junction City v. Blades, 1 Kan. App. 85. See also, State v. Donovan, 61 Iowa 369; Mis- souri Pac. By. Co. v. Christman, 65 Tex. 369; Seeley v. State, 43 Tex. Cr. App. 66. 22 — Leiber v. Chicago, M. & St. P. By. Co., 84 Iowa 97; Kinney v. North Carolina E. Co., 122 N. C. 961; Fitzpatrick v. Fain, 3 Coldw. (Tenn.) 15. In the trial of a cause, testimony may be offered as to a particular fact, and it is not a comment upon the testimony to specially refer to that fact, but it would be other- wise if the court should undertake to refer specially to items of, evi- dence, as to its weight, etc., in sup- port of the fact itself. State v. Galliton, 176 Mo. App. 115. 23 — Martin v. Leslie, 93 111. App. 44; Ellerbe v. State, 79 Miss. 10; Halsey v. Bell (Tex. Civ. App.), 62 S. W. 1088. See also, §§ 102, et seq., ante, "Assumption of facts." An instruction, in an action by a traveler against a city, which as- sumes "that plaintiff was wanting either in ability, skill, or care," is upon the weight of evidence. City of San Antonio v. Porter, 24 Tex. Civ. App. 444. 24 — Alabama. Anniston City Land Co. v. Edmondsou, 127 Ala. 445. Georgia. Suddeth v. State, 112 Ga. 407; Florida, C. & P. B. Co. v. Lucas, 110 Ga. 121; Bushin v. Shields, 11 Ga. 636, 56 Am. Dec. 436. Kansas. Lorie v. Adams, 51 Kan. 692, 33 Pac. 599. Texas. Short v. Kelly (Tex. Civ. App.), 62 S. W. 944. It is error to express an opinion as to what has been proved,, and to state that a controverted fact has been proved by undisputed evidence. Florida, C. & P. B. Co. v. Lucas, 110 Ga. 121. 25 — State v. Swayze, 30 La. Ann. 1323. 26 — Thompson v. Thompson, 17 B. Mon. (Ky.) 28. 278 Instructions to Juries. [§ 117 plaintiffs were entitled to recover; 27 that, "if you think there is some evidence in favor of the plaintiff's side of the case, whether it be little or great, it is your duty to find in her favor"; 28 or that, if the jury believe the evidence, they must find for a party named ; 29 to state that certain evidence is conclusive; 30 that a fact is conclusively proven; 31 or to instruct that certain evidence is good and effectual in law to maintain the issue on behalf of the party producing it; 32 that certain evidence prima facie establishes a fact ; 33 that certain indicia of fraud raise a "violent presumption"; 34 that, "if you [the jury] believe * * *, that would be a strong circumstance to show ' ' ; 35 or that a fact is a strong and almost irresistible circumstance. 36 Oft the contrary, it is improper to state that the evidence is insufficient, 37 that designated evidence is weak or of little value; 38 to state that, while there is some evidence to go to the jury, it is a bare scintilla, leaving the matter not proved; 39 to state that matters alleged in the declaration are 27 — Ayres v. Moulton, 5 Coldw. 34 — Shealy v. Edwards, 75 Ala. (Tenn.) 154. 411. An instruction that "plaintiff has 35 — Phillips v. Williams, 39 Ga, established his right to recover 602. sixty-five dollars for the purchase An instruction that a certain price of the .insulating material ' ' is fact in evidence is a " strong cir- properly refused where the evidence. cumstance" showing a particular in. is conflicting on such issue. Ket- tention invades the province of the tering Mercantile Co. v. Sheppard/ jury, and is erroneous. Clark v, — N. M.— , 142 Pac. 1128. Smith, 87 111. App. 409. 28 — Bunting v. Saltz, 84 Cal. 168, 36 — Marr y. Marr, 5 Sneed (Tenn.) 24 Pac. 167. 385. 29— Smith v. Collins, 94 Ala. 394; 37— Johnson v. People, 94 111. 505; Gibson v. Snow Hardware Co.,, 94 Farmers' & Merchants' Bank v, Ala. 346. Harris, 2 Humph. (Tenn.) 311. 30— Burkham v. Mastin, 54 Ala. 38 — Kauffman v. Maier, 94 Cal, 122. 269, 18 L. E. A. 124n, 29 Pac. 481; 31 — Bardwell v. Ziegler, 3 Wash. West v. Black, 65 Ga. 647; Wan- St. 34, 28 Pac. 360. nack v. City of Macon, 53 Ga. 162; 32— Keel v. Herbert, 1 Wash. Mauro v. Piatt, 62 111. 450. (Va.) 203. 39— Boing v. Rajeigh & Gaston E. 33— Hartshorn v. Byrne, 147 111. Co., 87 N. C. 360. 418. § 117] Charging on Facts oe Weight of Evidence. 279 disproved by the evidence; 40 that upon all the evidence, if believed, plaintiff is not entitled to recover; 41 or to state that the evidence did not show what plaintiff claimed it did; 42 and a requested instruction that ' ' even should you find for the plaintiff he can recover in this action only his actual damages" is properly refused, as the word "even" carries with it an intimation of the court's opinion to the effect that it is not probable they will so find. 43 It is also improper to state that certain testimony was immaterial; 44 to instruct directly or by intimation that evi- dence is entitled to little weight; 45 or to instruct that, although parol proof of the verbal admissions of a party often affords satisfactory evidence, yet, as a general rule, statements of witnesses as to verbal admissions of a party should be received with great caution, as that kind of evi-~ dence is subject to much imperfection and mistake. 46 An instruction defining the term "preponderance of the evidence ' ' as meaning not necessarily the greater number of witnesses is erroneous, being upon the weight of the evi- dence, 47 and it is improper to intimate that the jury should give greater weight to the testimony of one witness than to that of another; 48 to state that evidence offered by one party 40 — James v. Brooks, 6 Heisk. 47 — St. Louis S. W. By. Co. v. (Tenn.) 150. Smith (Tex. Civ. App.), 63 S. W. 41— Sherrill v. Western U. Tel. Co., 1064; Dallas Cotton Mills v. Ashley 116 N. C. 655. (Tex. Civ. App.), 63 S. W. 160. 42 — Southern Life Ins. Co. v. Wil- 48 — Bynum v. Southern Pump & kinson, 53 Ga. 548. Pipe Co., 63 Ala. 462. 43- i Manistee Mill Co. v. Hobdy, An instruction that "all other 165 Ala. 411, 138 Am. St. Eep. 73. things being equal evidence of wit- 44 — Jessup v. Gragg, 12 Ga. 261. nesses given in the presence of the 45 — State v. Hundley, 46 Mo. 414; court and jury is entitled to greater Knowles v. Nixon, 17 Mont. 473, 43 weight than that of> witnesses whose Pac. 628. ■ depositions have been taken and It is proper to refuse to comment read in evidence" is erroneous, adversely upon the testimony of a Works v. Stevens, 76 Ind. 181. witness. Granby Mining & Smelting An instruction telling the jury Co. v. Davis, 156 Mo. 422. that, in determining wTiat consider- 46 — Kauffman v. Maier, 94 Cal. ation induced the defendant to sign 269, 18 L. E. A. 124n, 29 Pac. 481. the note, they are to give greater 280 Instructions to Juries. [§ 117 is entitled to more weight than that offered by the other; 49 that the testimony of a "party to the suit might not be suffi- cient to warrant a finding upon it, if it appeared thathe could have brought other testimony to the fact; 50 that, "if you find that defendant testified," etc., and "if you find that his actions speak louder than words thus testified to"; 51 that the testimony of defendant and one of the witnesses was evenly balanced; 52 to tell the jury to consider any par- ticular statement of a witness as a mistake, and to give full credence to the remainder of his testimony; 53 or to state that if the jury believe from the evidence of a particular witness that all his knowledge of a fact testified about by him is derived from the books of the party calling him, and if they find that the testimony of such witness is all the evi- dence on that subject, then there is no evidence before them as to that fact. 54 § 118. Same — Miscellaneous instructions violating pro- hibition. It has been held improper to give an instruction which assumes to determine a question of intention; 55 to state that "slight circumstances will carry" conviction of the exist- ence of fraud; 56 or to tell the jury that certain facts are not weight to a letter written by the 50 — Baines v. TJllmann, 71 Tex. plaintiff to the defendant just after 529. the signing than the memory of de- 51 — Wilkinson v. Searcy, 76 Ala. fendant at that time, is erroneous. 176. McHard v. Ives, 5 HI. App. 400, 52— Canada v. Curry, 73 Ind. 246. aff'd 103 111. 97. 53— Citizens' St. By. Co. v. Burke, An instruction that, if the jury 98 Tenn. 650. find the testimony of the plaintiff 54 — Wolcott v. Heath, 78 111. 433. to' be the only positive evidence in 55 — Oliver v. State, 17 Ala. 587; support of material allegations, and Barton v. Stroud-Gibson Grocer Co. that it is contradicted in all mate- (Tex. Civ. App.), 40 S. W. 1050. rial points by an unimpeached wit- 56 — Higginbotham v. Campbell, ness, they must find for defendant, 85 Ga. 638, in which it was said that is erroneous. ' Delvee v. Boardman, it would be correct to charge that 20 Iowa 446. "slight circumstances may be suf- 49 — Lyon v. George, 44 Md. 295. ficient to carry * * *" § 118] Charging on Facts or Weight of Evidence. 281 fraudulent if there was any controversy as to the existence of the facts. 57 So, also, it has been held improper to state that certain evidence, if believed by the jury, ' ' is not sufficient to author- ize them to find a due presentation of the claim" sued on; 58 to characterize a sale alleged t6 have been made asa" so- called sale"; 59 to state that a party was a fair purchaser for a valuable consideration; 60 that the jury cannot find for plaintiff because there is no good or valid consideration for the promise or undertaking alleged in his declaration proved; 61 to state that the judge had heard no evidence of an agreement that would operate as an estoppel to the plaintiff; 62 that, from the whole testimony before them, the demand of the plaintiffs was not barred by the statute of limitations; 63 that a decision read by counsel from a vol- ume of reports was so much like the case at bar in its facts and in the law it declares that it seemed unnecessary to say anything further on the subject; 64 or to state that "this is a case in which you have to rely upon just such evidence as can be "obtained, on account of the death of persons who might know facts ; you are left to a limited source for evi- dence." 65 Where the evidence is conflicting as to when an ice season closed, an instruction that it closed during the month of November is upon the weight of the evidence and im- proper; 06 and an instruction that certain articles consti- tuting a museum had no general market value is on the 57 — Cleveland v. Empire Mills, 6 63 — Fisher's Ex'r v. Duncan, 1 Tex. Civ. App. 479. Hen. & M. (Va.) 563, 3 Am. Dee. 58— Frazier's Ex'r v. Praytor, 36 605. v Ala. 691. 64— Moore v. Robinson, 62 Ala. 59— Kuhlenbeck v. Hotz, 53 111. 537. App. 675. 65— McVicker v. Conkle, 96 Ga. 60— Fowler v. Lee, 4 Munf. (Va.) 584. 373. 66 — A. S. Cameron Steam Pump 61 — Ferguson v. Porter, 3 Fla. 27. Works v. Lubbock Light & lee Co., 62— Howard v. Wofford, 16 S. C — Tex. Civ. App. — , 147 S. W. 717. 148. 282 Insteuctions to Jueies. [§ 118 weight of the evidence when the evidence as to the nature of the articles and the manner of their collection and prep- aration tend to show that they were all such specimens as might have a market value. 67 An unequal division of one's property by will among chil- dren is a proper subject to be shown and commented upon before the jury in argument, but such principle does not warrant the court to so instruct the jury, as this would be a comment on the evidence. 88 An instruction that a city council, by receiving and filing the report of a city engineer, did not ratify the acts of the engineer set forth in the report, is on the weight of the evi- dence and improper. 69 In a suit for the value of horses alleged to have been pur- chased by B., where it was proved, among other things, that the horses were purchased for the use of the Overland Mail Line, an instruction that, under the evidence, B. was to be considered the sole proprietor of that line, was held a viola- tion of the rule prohibiting charges as to matters of fact. 70 Where an agent took a deed for land in settlement of an account without authority from his' principals, having no knowledge as to the value of the land or other important facts, it was held error to charge the jury that the deed, when sent them, furnished full knowledge of the facts, and that the receipt of it was all that was required to put them in possession of the facts. 71 Where a suit was brought because of the premature issue of an execution, it was held error to charge ' ' that the issu- ance of an execution immediately upon the rendition of a judgment, upon the filing of a proper affidavit, without wait- ing for the lapse of ten days, is summary, and might be ren- 67— Yoakum v. Dunn, 1 Tex. Oiv. 70— Pico v. Stevens, 18 Cal. 376. App. 524. 71^-Meyer v. Smith, 3 Tex. Oiv. 68 — Andrew v. Linebaugh, 260 App. 37. Mo. 623. 69 — City of Dallas v. Beeman, 23 Tex. Civ. App. 315. § 119] Charging on Facts oe Weight of Evidence. 283 dered exceedingly harsh and oppressive," as calculated to lead the jury to believe that the court thought a great wrong had been done. 72 In a suit involving boundaries, in which an order of sur- vey had been made, and the report of the surveyor sub- mitted in evidence, there being conflicting evidence, it was held error, as charging upon the weight of the evidence, to instruct the jury that the surveyor's report must be taken as correct and true until it is shown to be erroneous, and that the burden of proof is upon the -defendant to show that this report is erroneous. 73 § 119. Same — Instructions in negligence cases violating prohibition. It is improper to state that certain evidence shows negli- gence, 74 or for the court to assume the existence of a mate- 72 — Clifford v. Lee (Tex. Civ. App.) 23 S. W. 843. 73 — Kerlicks v. Meyer, 84 Tex. 158. 74— niinois. New York, C. & St. L. B. Co. v. Blumenthal, 160 111. 40; William Graver Tank Works v. Me- Gee, 58 111. App. 250. Missouri. Blair v. Mound City Ey. Co., 31 Mo. App. 224. South Carolina. Turbyfill v. At- lanta & C. Air Line Ey., 83 S. C. 325; China v. City of Sumter, 51 S. C. 453. Texas. Costley v. Galveston City Ey. Co., 70 Tex. 112; Galveston, H. & S. A. Ey. Co. v. Knippa (Tex. Civ. App.), 27 S. W. 730; San Antonio & A. P. Ey. Co. v. Long, 4 Tex. Civ. App. 497. And see cases cited post, this note. Negligence is a mixed question of law and fact, and while it is the duty of the court to define negli- gence, it is the duty of the jury to draw the inference from the facts. An instruction intimating to the jury the inference from the facts therein carefully set out in detail, should not be given. Turbyfill v. Atlanta & C. Air Line Ey., 83 S. C. 325. A charge that "if it appears that a railway company is running its train at a very fast rate of speed, and that a person is on a street or highway in a safe place, and that such person sees or knows that such train is rapidly approaching and is very near, and notwithstanding this suddenly, carelessly, and negligently attempts to run across the track just in front of such train and this com- bined and concurred with the rapidly moving train as a proximate cause to such injury, then there can be no recovery," held properly refused. Turbyfill v. Atlanta & C. Air Line Ey., 83 S. C. 325. An instruction declaring it negli- gence per se for the complainant, with knowledge of the dangerous condition of a street, to drive along it, if she ought reasonably to have 284 Instructions to Juries. [§119 rial fact, 75 and an instruction that, -"if you find and believe from the evidence that plaintiff was deaf or hard of hearing at the time of the accident complained of, then, and in that event, you are instructed that such deafness, or partial deaf- ness, would require greater vigilance of plaintiff in the exer- cise of his eyesight in approaching said crossing," has been held properly refused as being a discussion of, and comment upon, the evidence, and, in effect, a charge upon the weight of the evidence. 76 avoided it, held properly refused. City of San Antonio v. Porter, 24 Tex. Civ. App. 444. An instruction that "if the city place ( obstructions there, not giving any notice and he (the plaintiff) sustained damages, it would be an act of negligence and mismanage- ment and the city would be responsi- ble" held an invasion of the prov- ince of the jury and an expression of opinion as to a material question of fact, warranting a new trial. China v. City of Sumter, 51 S. C. 453. An instruction that certain acta of the plaintiff were ' ' all that the law required of her, so far as dili- gence on her part in getting off the car is concerned," and that, under such circumstance, the starting of the car was an ' ' act of negligence, ' ' held erroneous. Blair v. Mound City Ry. Co., 31 Mo. App. 224. 75 — In an action for personal in- juries caused by a fall from an elec- tric car, an instruction that "the care which the defendant, owed the plaintiff as its passenger was that high degree of care which very cau- tious, competent and prudent per- sons would have exercised under like or similar circumstances of dan- ger" was erroneous as on the weight of evidence in that the words, ' ' of danger" assumed that the plaintiff was in a position of danger. North- ern Texas Traction Co. v. Moberly, — Tex. Civ. App. — , 109 S. W. 483. In an action by a person injured While alighting from a street car, a charge that "the plaintiff as shown by the evidence, was a passenger on the car of the defendant company at the time and place of the alleged in- jury, and that in law he continued to be a passenger until he had a rea- sonable time under all the facts and circumstances shown to you by the evidence in this cause to alight from said car," etc., was erroneous as assuming that the plaintiff did not have a reasonable time to alight. El Paso Elec. Ry. Co. v. Boer, — Tex. Civ. App. — , 108 S. W. 199. In an action for injuries to a, serv- ant an instruction that "the plain- tiff admits that he knew of the dangers of working around this par- ticular machine on which he was injured" was properly refused, there being no such admission in the plead- ings, and the court had no right to comment on the facts. Cook v. Pit- tock & Leadbetter Lumber Co., 51 Wash. 316, 98 Pac. 1130. See also, §§ 102, et seq., ante, "Assumption of facts." 76— Texas & P. R. Co. v. Durrett, 26 Tex. Civ. App. 268. § 119] Charging on Facts or Weight of Evidence. 285 So, also, in an action for delay in delivering a telegram, a requested instruction that the plaintiff's wife was pre- sumed to know the schedule of trains which would enable her to go to her sister's funeral has been held properly refused as on the weight of evidence. 77 In an action against a railroad company for damages for injuries inflicted in a collision, an instruction that, "when it is shown by the proof that an injury was received by rea- son of and as the direct result of an unusual occurrence, then the law presumes the occurrence so causing the injury to have happened by reason of negligence, unless it further appears by the proof that such unusual occurrence was not the result of negligence, but, on the contrary, was caused by some circumstance or cause which the exercise of the greatest care and prudence could not have prevented, ' ' has been held clearly erroneous. 78 In an action for injuries to live stock, an instruction that there was no evidence which would warrant a finding that the cattle were roughly handled while in the possession of one defendant was held erroneous as on the weight of the evidence, where there was evidence tending to show such fact. 79 In an action for injury to rice, a charge that the defend- ant was not liable for the consequences of a storm that had only occurred twice in a generation was a charge on the facts. 80 An instruction that it was the defendant's duty to use ordinary care to furnish for its employees a suitably lighted switch yard, and that, if the injury was caused by a failure to exercise such care in that respect, the jury should find for the plaintiff, is erroneous, as such charge can only mean one of two things, viz. : Either that it was the legal duty 77 — Western TJ. Tel. Co. v. Taylor, Hawkins & Nance, — Tex. Civ. App. — Tex. Civ. App. — , 167 S. W. 289. — , 167 S. W. 190. 78— Texas Cent. By. Co. v. Bur- 80— Carolina Biee Co. v. West nett, 80 Tex. 536. Point Mill. Co., 98 S. C. 476. 79— Houston & T. C. E. Co. v. 286 Instructions to Juries. [§ 119 of appellant to use ordinary care to have its yard suitably lighted, regardless of whether or not said yard would be reasonably safe without such light, or that, in the opinion of the court, said yard would not be reasonably safe unless same was suitably lighted. Under either of these inter- pretations, the charge is obviously upon the weight of the evidence. 81 While an experienced servant knows or v has a better op- portunity of knowing the dangers of a particular employ- ment than an ordinary man, both are chargeable with what they know or ought to know, and for the court to lay stress in his charge as to any difference between the two as a matter of law would be upon the weight of evidence. 82 In an- action against a railroad company for damages caused by fire, an instruction that the volume of sparks emitted, and other fires caused by the railroad company, might be considered by the jury, has been held to be on the weight of the evidence, 83 and an instruction, in an action for damages caused by a prairie fire, that "fire is a danger- ous element, and a degree of care is required, in making use of it, corresponding to the danger, and that a man has the right to start a fire on his own premises, providing the circumstances are such as show that the act may be done with reasonable safety to the property of others," has also been held erroneous. 84 § 120. Same — Instructions as to damages violating pro- hibition. It is improper to state that plaintiff is "entitled" to com- 81 — Galveston, H. & S. A. Ey. Co. holding is questionable. In Texas, v. English (Tex. Civ. App.) 59 S. W. the province of the jury seems to be 626. guarded more jealously than in any 82 — Consumers' Lignite Co. v. other state of the Union, and the Cameron, — Tex. Civ. App. — , 134 rulings of its courts go. to the very S. W. 283. verge of the law in maintaining the 83 — Galveston, H. & S. A. Ey. Co. prerogative of the jury. v. Knippa (Tex. ' Civ. App.) 27 S. 84 — Meadows v. Truesdell (Tex. W. 730. The correctness of * this Civ. App.) 56 S. W. 932. § 121] Charging on Facts or Weight of Evidence. 287 pensatory damages; 85 or to tell the jury that, "no damages having been alleged, and no damages having been proved, they could not render a verdict for damages." 86 Also, an instruction that ' ' the medical experts who testi- fied for the plaintiffs were naturally inclined to view the circumstances that make for the plaintiff's side in a favor- able light and contrary circumstances in an unfavorable light," is erroneous as an expression of opinion on the weight of evidence and is properly refused. 87 § 121. Same — Instructions violating prohibition in crim- inal cases. In criminal cases it is improper to give an instruction which intimates that it is the jury's duty to convict, 88 and it has been held improper to give instructions wherein the court states that the evidence shows certain facts, 89 or to comment upon one phase of the evidence; 90 to give instruc- 85 — Browning v. Jones, 52 111. App. 597. 86— Levi v. Legg, 23 S. C. 282. 87 — Ferebee v. Norfolk Southern E. Co., 167 N. C. 290. 88 — "An instruction couched in language which implies the expecta- tion of the court that a verdict of guilty will be returned, or an in- timation that it is the duty of the jury to convict, or which tends to shift the burden of proof," is im- proper. Bauer v. State, 3 Okla. Cr. 529, 107 Pac. 525. See also, People v. Conboy, 15 Cal. App. 97, 113 Pac. 703. 89— People v. Casey, 65 Cal. 260, 3 Pac. 874. In a criminal prosecution, an in- struction that the proof shows be- yond all controversy that certain facts have been established is erro- neous, though defendant has intro- duced no evidence. State v. Carter, 112 Iowa 15. All fact issues arising in a crim- inal case must be determined by the jury, who are the sole judges of the credibility of all witnesses, and who cannot be compelled to credit the testimony of any witness, whether controverted or not, and it is there- fore improper for the court to take from the consideration of the jury material allegations concerning which there is no controversy in the testimony. State v. Bige, 112 Iowa 433. 90 — In a prosecution for larceny an instruction that even though the jury should find that the entrails of one of the hogs alleged to have been stolen was found in an ice house in the possession of the defendant, yet unless the jury should find beyond all reasonable doubt that the said entrails were placed there with the knowledge and consent of the de- fendant, such fact was not evidence of his guilt, was properly refused as 288 Instructions to Jueies. [§ 121 tions as to the relative value of direct and circumstantial evidence; 91 to state that circumstantial evidence, when fully and conclusively made out, is sufficient to sustain a conviction; 92 that "the guilt of the defendant rests upon what is known as 'circumstantial evidence' "; 93 that cer- tain evidence of a fact is a suspicious circumstance against defendant; 94 that certain evidence is short, clear, and to the point, and leaves not much room for doubt; 95 to tell the jury that, upon a given state of facts, they can have no reasonable doubt; 96 to discuss defendant's testimony in such a manner as to give the jury the impression that the court thought it was of little value; 97 or to instruct that, ' ' if you disbelieve all the evidence for the state, and believe every word of evidence for the defense, I charge you that the defendant is guilty; but of course you can look to all the evidence, and make up your verdict on it." 98 Instructions containing directions or advice in respect to inferences of fact to be drawn by the jury from the evidence are properly refused, 99 and it is improper to instruct that the fact that defendant did not disprove circumstances, if the jury believe he has the means of disproving them if a comment upon one phase of the evidence, and is within the prohibiT evidence. State v. Shaffer, 253 Mo. tion of the constitution of the state 320. of California. People v. O'Brien, 91— An instruction that, though 130 Cal. 1, 62 Pac. 297. error is sometimes committed from a 92 — Horton v. State (Tex. App.) reliance on circumstantial evidence, 19 S. W. 899. See also, ch. XXXI, yet this species of evidence, in the post, "Instructions on Circumstan- opinion of all those who are most tial Evidence." conversant with the administration 93— State v. Duffy, 6 Nev. 138. of justice, is not only proper and 94 — Massey v. State, 1 Tex. App. necessary, but it is sometimes even 564. more satisfactory than the testimony 95 — State v. Asberry, 37 La. Ann. of a single individual, who swears 124. that he has seen a fact committed, 96 — Wilcox v. State, 3 Heisk. and that even persons professing to (Tenn.) 110. have been eye witnesses of the fact 97 — State v. Wyse, 32 S. C. 45. may speak falsely, is obviously a 98 — White v. State, 56 Ga. 385. charge to the jury as to the relative,. 99 — State v. Mahoney, 24 Mont, value of direct and circumstantial 281, 61 Pac. 647. § 121] Charging on Facts or Weight of Evidence. 289 false, lends additional weight to such as are proved; * that, unless the jury disbelieved the testimony of the defendant, the weight of testimony tended to prove that his act was not criminal; 2 to give an instruction minimizing the effect of evidence; 3 or telling the jury that they may disbelieve the testimony of a witness if any statement made by him is untrue; 4 to state that the jury is not bound to consider the testimony of defendant as true, in view of the temptation to procure an acquittal; 5 that the jury must discard from their consideration any part or the whole of the testimony of any witness that they may regard as improbable or untrue; 6 that- the jury must put upon any part of the testimonv a construction favorable to the defendant, if rea- 1 — Leonard v. Territory, 2 Wash. T. 381, 7 Pae. 872. 2— People v. Cowgill, 93 Cal. 596, 29 Pac. 228. 3 — Where four defendants were jointly indicted and jointly tried for murder, an instruction as to the statements of the defendants as wit- nesses, that "three of them were put under oath and sworn as wit- nesses in behalf of the other defend- ants, but whatever they said would not be considered in their own be- half at all, but as a statement by the defendants to be considered by you and given such weight as you see proper as a statement by the defendants and not as evidence ' ' was erroneous, as the effect was or might have been to minimize in the minds of the jury ( the weight of the evi- dence given by the defendants. Eoberson v. State, 14 Ga. App. 557. 4 — On a trial for murder, an in- struction that "you are the sole judges of the weight of the testi- mony and the credibility of each wit- ness, and if, from the evidence in this case, you believe any witness Blashfield Vol. 1—19 testified falsely to a material fact, it is your duty and you should dis- ' regard the testimony of such wit- ness, " is erroneous as a charge on the weight of evidence telling the jury that if they believe any state- ment untrue, they must disbelieve all the witness said, whether the statement, was made wilfully, know- ingly or corruptly and whether they do or not believe other statements to be true. Davis v. State, 89 Miss. 119. 5— In a prosecution for extortion an instruction that, "You are not bound to consider the testimony of the defendants as absolutely true * * * and you are to consider the great temptation which one so situated is under, so to speak, as to procure his acquittal" was er- roneous as seeming to leave an im- plication that it was incumbent upon them to consider the defendant's testimony as false and for that reason to reject it. State v. Bart- lett, 50 Ore. 440, 126 Am. St. Rep. 751, 93 Pac. 243. 6— Bishop v. State, 43 Tex. 391. 290 Instructions to Juries. [§ 121 sonable ; 7 that, under the evidence in the case, the jury can- not convict the defendants of murder in the second degree, there being some evidence to establish their crime, though contradicted by other evidence ; 8 that the jury might con- vict the defendant if they found there was any evidence in certain circumstances, singled out or otherwise, which they thought corroborated a witness who was an accomplice; ° that if the jury believe the testimony of certain named wit- nesses, they should either convict or acquit ; 10 or that ' 'you will determine from the evidence whether there was or was not a confession under such a warning, as before defined, and voluntarily and freely made, as before instructed. If you so find, you will convict defendant." J1 A requested charge that if confessions "are so contra- dicted in themselves that they cannot be reconciled, then you may discard them from your consideration in arriving at a verdict in this case" should not be given as the fact that confessions were contradictory within themselves would not affect the admissibility, but would be a circum- stance for the jury in determining their weight. 12 In a prosecution for larceny an instruction that if the defendant made the confessions attributed to him, the law presumed the statements so made to be true, was in effect an expression of, opinion by the court on the weight of the evidence. 13 An instruction that the mere silence of the defendant at the time of being arrested should not be considered as a circumstance against him is properly refused, being on the weight of the evidence. 14 An instruction that ' ' there has been manifest perjury by 7— Smith v. State, 88 Ala. 23. 12— Goode v. State, 57 Tex. Cr. 8— State v. Potter, 16 Kan. 80. App. 220. 9 — Dickenson v. State (Tex. Cr. 13 — McLemore v. State, 111 Ark. App.) 63 S. W. 328. 457. 10— Green v. State, 60 Tex. Cr. 14— Clark v. State (Tex. Cr. App.) App. 530. 59 S. W. 887. 11— McVeigh v. State, 43 Tex. Cr. App. 17. § 121] Charging on Facts ok Weight of Evidence. 291 witnesses who have testified in this case, as counsel for both sides have claimed in their argument. They of course differ as to which witnesses have testified falsely. It is for you to determine from all the evidence which includes the ap- pearance of the witnesses when testifying as well as what they said what evidence you credit, ' ' is erroneous as v a comment on the evidence since the court found and stated that one set of witnesses had committed perjury. 15 In a prosecution for arson, a charge that the defense of alibi must be received by the jury with caution is erroneous as a charge on the facts. 16 In a prosecution for rape the designation of the prosecu- trix as a "courteous, kind and modest" witness is im- proper, 17 and in such a prosecution where the defendant's plea of not guilty puts in issue the corpus delicti, 'ah in- struction that ' ' you need not bother yourselves much about the corpus delicti" is erroneous, as a plain intimation, if not a positive expression of the judge's opinion that the corpus delicti had been sufficiently proved. 18 Other instructions which have been held erroneous in prosecutions for pandering, 19 homicide 20 or the commission 15^-State v. Chavez, — N. M. — , charge was erroneous. Jones v. 142 Pac. 922. State, 72 Tex. Cr. App. 496. 16 — State v. Smalls, 98 S. C. 297. 20 — In a prosecution for homicide 17 — People v. MaeDonald, 167 Cal. an instruction that ' ' The instrument 545, 140 Pac. 256. or means by which a homicide is 18 — State v. Johnson, 85 S. C. 265. committed are to be taken into con- 19 — In a prosecution for pander- sideration in judging the intent of ing, an instruction as to securing a the party offending. If the instru- room in a house of prostitution at ment be one not likely to produce the woman 's request, concluding death, it is not to be presumed that with the words, "It is therefore death was designed unless from the proper for you to consider her re- manner in which it was used such quest to go there as meaning the intention evidently appears" was same in law as consent to go there, ' ' held on the weight of the evidence was a virtual instruction that it was where the facts showed that de- a fact proven by the testimony that fendant used a deadly weapon, a she had made the request, and that pistol, in shooting the deceased the defendant had obtained the room when he thought that such deceased on such request, wherefore the was going to draw a pistol to shoot 292 Instructions to Juries. [§ 121 of the, crime against nature 21 are set out below in the notes. § 122. Same — Instructions held not to violate prohibition in general. It is not improper for the court to state an uncontroverted fact; 22 or a fact supported by strong and uncontradicted evidence ; 23 to give an instruction declaring the law appli- him. Andrus v. State, — Tex. Cr. App. — , 165 S. W. 189. On an indictment for murder, an instruction that, if the defendant in- flicted the wound, and if such wound eaused death, the case was murder, was held erroneous because it ap- plied a principle of law to the facts of the case, although it did not ex- press a direct opinion. Wall v. State, 112 Ga. 336. An instruction "that the indict- ment in the case is for murder in the first degree, and that the state's contention in the case is that the offense is either murder in the first degree or nothing, and that the ver- dict should be a verdict of acquittal, or for murder in the first degree, and that the state's contention in this respect is correct," is upon the effect of the evidence, and, if not requested by either party in writing, is in violation of the statutes of the state of Alabama. Gafford v. State, 125 Ala. 1. 21 — In a prosecution for commit- ting the crime against nature, an in- struction wherein the judge told the jury that a man with normal sexual instincts was not ' ' capable ' ' of com- mitting the crime charged and that if the jury was satisfied that a person was possessed of unnatural or abnormal sexual sense, they might "infer that he had a motive, a rea- son, or a force impelling him to do such an act" was erroneous as the court practically assumed the posi- tion of an expert witness and gave his opinion of the kind of person who could commit the crime. State v. McAllister, 67 Ore. 480, 136 Pac. 354. 22— Halsell v. Neal, 23 Tex. Civ. App. 26; White v. Jansen, 81 Wash. 435, 142 Pac. 1140. Instructions assuming facts which are admitted by both parties are not improper. State v. Angel, 29 N. C. 27; San Antonio & A. P. Ey. Co. v. Use (Tex. Civ. App.), 59 S. W. 564. 23— California. People v. Lee Sare Bo, 72 Cal. 623, 14 Pac. 310. Georgia. Marshall v. Morris, 16 Ga. 368. Maine. McLellon v. Wheeler, 70 Me. 285. Montana. Hogan v. Shuart, ' 11 Mont. 498, 28 Pac. 969. Texas. Denham v. Trinity County Lumber Co., 73 Tex. 78. See also, McGhee v. Wells, 57 S. C. 280, 76 Am. St. Rep. 567. The rule which forbids a judge to charge on the weight of the evidence does not require or authorize him to assume as doubtful that which is clear and indisputable. Wintz v. Morrison, 17 Tex. 372, 67 Am. Dec. 658. If the presiding judge inadver- tently assumes as uncontroverted matters in evidence upon which either party proposes to raise an is- 122] Charging on Facts oe Weight of Evidence. 293 cable to a given state of fact's; 24 to direct the jury to the real issue, when the argument of counsel is such as to distract their minds therefrom; 25 to call the jury's attention to ques- tions of fact by way of interrogatories addressed to them upon matters important for their consideration in arriving at a correct conclusion upon the main question ; 26 to state the issues raised by the pleadings ; 2T or the contentions of a party. 28 Where certain classes of evidence, by law, are presumed to prove certain things, it is not improper for the court to tell the jury what facts they prove or tend to prove/" sue to the jury, it is the duty of counsel to call the attention of the judge to the fact. Harvey v. Dodge, 73 Me. 316. 24 — Yarborough v. State, 86 Ga. 396. Instructions declaring the law upon a hypothetical state of facts do not violate statutory or constitu- tional provisions forbidding a charge on matters of fact. State v. Whittle, 59 S. C. 297; Jones v. Hiers, 57 S. C. 427; Waters Pierce Oil Co. v. Davis, 24 Tex. Civ. App. 508; Phoenix Ins. Co. of Hartford, Conn. v. Neal, 23 Tex. Civ. App. 427. Instructions reciting the facts as claimed to have been proved, and giving the law thereon, without giv- ing or intimating any opinion as to whether such facts have or have not been proved are not erroneous. Prit- chett v. Overman, 3 G. Greene (Iowa) 531; State v. Smith, 11 La. Ann. 633; Andrews v. Parker, 48 Tex. 94. A charge that cohabitation and declarations of the parties that they are husband and wife do not con- stitute a marriage in the absence of an agreement express or implied, is not a comment on the evidence, but a mere statement of law; Schwingle v. Keifer, — Tex. Civ. App. — , 135 S. W. 194. 25— State v. West, 43 La. Ann. 1006. 26— State v. Day, 79 Me. 125. 27 — Crosland Co. v. Pearson, 86 S. C 313. An instruction not intended as a comment on the facts, but merely for the purpose of stating the issues or contentions of the respective par- ties, is not erroneous. Gilchrist v. Hartley, 198 Pa. 132; Westbury v. Simmons, 57 S. C -467; Sherman, S. ' & S. Ey. Co. v. Bell (Tex. Civ. App.) 58 S. W. 147. 28 — An instruction that a certain fact exists is not erroneous, although the fact is disputed, where the con- text shows that the statement was made as the contention of one of the parties. West v. Banigan, 51 App. Div. (N. Y.) 328. 29 — While the courts are pro- hibited generally from selecting cer- tain parts of the evidence and telling the jury how they shall weigh the same, there are certain classes of evidence which, by law, are presumed to prove certain things, and as to those particular classes of evidence it is not improper for the court to tell the jury what facts they prove 294 Instructions to Juries. [§122 It has also been held not improper to limit the effect of evidence which is competent for some purposes but not for others ; 30 to state that there is no evidence as to a particular fact or issue, when such is the case; 31 to state that the testi- mony of a witness, if true, will establish- a specified fact, leaving the jury to decide upon his credibility; t,o state that there is "some evidence tending to show" a fact; 32 to state that certain evidence is admissible ; 33 to state the purpose for which certain evidence is admitted; 34 to assume the nonexistence of evidence which is excluded or not offered; 35 to state that if the evidence is not reconcilable, the jury must decide what witnesses are the most credible ; 38 to state that the jury are not bound to accept as true the opinion of expert witnesses; 37 to tell the jury that the evidence is or tend to prove. State v. Creeley, 254 Mo. 382. See § 116, ante, stat- ing general rule and exceptions. 30 — Jacobs v. Totty, 76 Tex. 343; Messer v. State, 43 Tex. Cr. App. 97; Jasper v. State (Tex. Gr. App.) 61 Sr W. 392; Bruno v. State (Tex. Cr. App.) 58 S. W. 85. 31— People v. Welch, 49 Cal. 174; People v. King, 27 Cal. 507, 87 Am. Dec. 95; King v. King, 155 Mo. 406; Reed v. Shenck, 13 N. C. 415. It is the duty of the court to tell the jury that there is no evidence of a particular fact if there is none. Wells v. Clements, 48 N. C. 168. ' 32— Michie v. Cochran, 93 Va. 641. 33 — An instruction stating that certain evidence objected to is ad- missible, nothing else being said which would lead the jury to believe that the court thought such evi- dence controlled the case is not im- proper. Carroll v. Roberts, 23 Ga. 492. See also, State v. Munson, 76 Mo. 109, in which it was held that an instruction that "all the evi- dence produced and admitted in the case is legal evidence; whether it is credible, or worthy of credit, is -a matter for the jury to determine, from all the facts and circumstances in proof, ' ' was clearly not a comment on the weight of the evidence. 34— Davis v. Gerber, 69 Mich. 246; Howerton v. Holt, 23 Tex. 57. An instruction should not state what the evidence tends to prove, without submitting at the same time the question of its credibility. Davis v. Gerber, 69 Mich. 246. 35 — Territory v. Gay, 2 Dak. 125. 36— Sneed v. Creath, 8 N. C. 309; Rideus v. State, 41 -Tex. 199, 37 — An instruction that the jury are not bound to accept as true the opinion of expert witnesses, but the jury may give such opinions such weight as the jury may, under all the evidence consider them entitled to, or the jury may disregard such opinions, if unreasonable, held not erroneous. Wiley v. St. Joseph Gas Co., 132 Mo. App. 380. § 122] Charging on Facts or "Weight op Evidence. 295 open to two constructions, if the court does not intimate which construction is the correct one; 38 to inform the jury that there is some evidence in the case of a circumstantial nature; 39 to state- that "plaintiff brings evidence to show"; 40 to instruct that, "if the jury believe from the evidence that the defendants did certain things, * * * " then the defendants are liable for all damages sustained; 41 to state that if the jury believe certain facts to have been proved, they must find a stated verdict ; 42 to limit the amount of the verdict to the amount claimed in the peti- tion; 43 to tell the jury to find for the plaintiff if the jury finds that certain facts exist, and to find for the defendant if. they find that such facts do not exist; 44 or to caution the jury not to let a certain circumstance prevent their look- ing to the whole evidence in making up their verdict. 45 In some jurisdictions it has been held not improper to sum up or recapitulate the evidence, 46 though this is pro- 38— Wyley v. Stanford, 22 Ga. 385. 39— People v. Wong Ah Foo, 69 Cal. 180, 10 Pac. 375. 40 — Central B. Co. v. Freeman, 75 Ga. 331. 41— Lagrone v. Timmerman, 46 S. C. 372. 42— State v. Mitehell, 41 La. Ann. 1073; Thompson v. Johnson (Tex. Civ. App.) 58 S. W. 1030. 43 — Oglesby v. Missouri Pae. By. Co. (Mo.) 37 S. W. 829. 44 — Eyan v. Los Angeles Ice & Cold Storage Co., 112 Cal. 244, 32 L. E. A. (N. S.) 524, 44 Pae. 471. See also, Messer v. State, 43 Tex. Cr. App. 97. 45 — Anderson v. Matindale, 61 Tex. 188. 46 — Maine. York v. Maine Cent. E. Co., 84 Me. 128. South Carolina. Hiott v. Pierson, 35 S. C. 611; State v. Dawkins, 32 S. C. 17; State v. Glover, 27 S. C. 602; State v. Summers, 19 S. C. 95. The court's discretion in this re- gard is not affected by statutes or constitutional provisions prohibiting the trial judge from commenting on the evidence, and expressing an opinion as to its weight. Com. v. Barry, 9 Allen (Mass.) 276; State v. Freeman, 100 N. C. 429; Hiott v. Pierson, 35 S. C. 611. In Com. v. Barry, ante, it was said: "The prohibition must be regarded as a re- straint only on the expression of an opinion by the court on the question whether a particular fact or series of facts involved in the issue of a case is or is not established by the evidence. In other words, it is to be construed so as to prevent courts from interfering with the province of juries by any statement of their own judgment or conclusion upon matters of fact. This construction effectually accomplishes the great object of guarding against any bias or undue influence which might be 296 Instructions to Juries. [§ 122 hibited in. other states by organic or statutory provisions. 47 In the jurisdictions where the practice is permissible, it has been held proper for the judge to analyze, compare, and explain the evidence; 48 to call the jury's attention to the evidence in the case, and state his recollection of what has or has not been testified to, submitting the whole matter to their consideration and judgment; 49 to read extracts from the evidence of a witness at the request of the jury, the parties being present, and not objecting; 50 or to repeat the uncontradicted testimony of witnesses, and point out the inquiries suggested thereby. 51 It has also been held that a simple enumeration of circumstances, though leading to an irresistible conclusion of fact, cannot be considered as an expression of opinion on such fact; 52 and a misstatement of the evidence in summing up is not an expression of opinion, and that it is the duty of counsel to call the judge's atten- tion to his error, in order that it may be corrected. 53 § 123. Same — Miscellaneous instructions not violating pro- hibition. The language of a charge that, "I am not sure and I frankly confess that I am not sure that I understand fully the claim upon which the plaintiff bases t the eleven thousand and some odd dollars," is an expression of diffidence, mean- created in the minds of jurors, if the was to recognize and affirm the weight of the opinion of the court power and authority of the court, should be permitted to be thrown to be exercised according to its dis- into the scale in deciding upon issues cretion, to sum up the evidence, to of fact; but further than this the state its legal effect and bearing on legislature did not intend to go. The the issues, and to indicate its proper statute was not designed to deprive application under the rules of law." the court of all power to deal with 47 — See § 136, post. the facts proved. On the contrary, 48 — Hamlin v. Treat, 87 Me. 210. the last clause of the section very 49 — Eddy v. Gray, 4 Allen (Mass.) clearly contemplates that the duty 435'. of the court may not be fully dis- 50 — Green v. State, 43 Ga. 368. charged by a mere statement of the- 51 — State v. Glover, 27 S. C. 602. law. By providing that the court 52— State v. Noblett, 47 N. C. 418. may also state the testimony, the 53 — Grows v. Maine Cent. E. Co., manifest purpose of the legislature 69 Me. 412. § 123] Charging on Facts oe Weight of Evidence. *297 ing that the judge did not know whether it had been proven or not, but such language is not an expression by the judge that the facts had or had not been fully proven. 54 Where a party has, by the introduction of title papers in evidence, shown a connected claim of valid transfers to land from and under the sovereignty of the soil down to himself, except one link in the chain, which was supplied by undis- puted heirship from one in whom the title had vested, an instruction that such party has shown title to the land is not a charge on the weight of evidence, but a proper charge upon the legal effect of uncontradicted testimony. 55 In an action for an assault by a conductor of a street car, an instruction under hypothesis "if the jury was reason- ably satisfied, from the evidence, that she paid the ten cent fare," was not a charge on the effect of the evidence. 50 At the trial of an action brought by the assignee of a bankrupt for the conversion of goods conveyed by the bankrupt to the defendants by a mortgage alleged to be a fraudulent preference, the judge instructed the jury that if the defendants knew or had reasonable cause to believe that the bankrupt was insolvent, and, with that knowledge, took nearly all his property to secure themselves, knowing that the law required that his property should be divided equally among his creditors, these facts would go far towards supporting the. inference that they had reasonable cause to believe that the bankrupt intended the mortgage as a preference. It was held that this instruction was not a charge with respect to matters of fact, within the statu- tory prohibition. 37 In an action against a sheriff for seizure of oxen, where the defense was a waiver by the plaintiff of the statute right of exemption, the presiding justice instructed the jury: 54 — McDonald v. MacArthur Bros. 57 — Forbes v. Howe, 102 Mass. Co., 154 N. C. 11. 427, 3 Am. Eep. 475. 55 — Teal v. Terrell, 58 Tex. 257. 56 — Birmingham Bailway, Light & Power Co. v. Lee, 153 Ala. 386. 298 Instructions to Juries. [§ 123 "If the plaintiff gave his consent, and said to the officer, ' There, all that property in that yard, comprising these oxen and those cows, are mine, and you can take the oxen or any of the rest of them you see fit, ' * * * that would be a waiver; the action cannot be maintained," followed by a statement of the plaintiff's denial of this, and of his version of the matter, and, ' ' if this is all he said, you would come to the conclusion, probably, that there was not any consent." This was held not a decision by the judge of any question of fact within the province of the jury. 58 § 124. Same — Instructions in negligence cases not violat- ing prohibition. Instructions in negligence cases which merely state the nature of the suit 59 or which state uncontroverted or ad- mitted facts ; 60 which declare the law applicable to a given state of facts, 61 or state what facts constitute' negligence, leaving the question to the jury; 62 or which direct the jury 58 — Fogg v. Littlefield, 68 Me. 52. fastened together. Burnet Fuel Co. 59 — An instruction that "this is a v. Ellis, — Tex. Civ. App. — , 162 suit by," etc., "to recover damages S. W. 911. alleged in plaintiff's petition to have 61 — An instruction, in an action resulted * * * by reason of be- by a servant against a master for ing thrown from one of defendant's personal injuries, that the jury street cars; the fall alleged to have should find that plaintiff was not been caused by the negligence of the guilty of contributory negligence, conductor in charge of the car," held and if certain facts, alleged to show not upon the weight of the evidence. negligence on the part of defendant, Dallas Consol. Elec. St. Ry. Co. v. had happened, and if the defendant Stone, — Tex. Civ. App. — , 166 S. was guilty of negligence, as ex- W. 708, 8 N. C. C. A. 698. plained in other instructions, then, 60 — In an action for injuries to a the jury should find such actual dam- coal miner where the plaintiff al- ages as would compensate plaintiff, leged that it was his duty to fasten merely applies the law to the very together five or six cars, and he testi- facts of the case, and is not upon fled there were five cars, an instruc- the weight of the evidence. Houston tion that if the jury found from the & T. C. Ry. Co. v. White, 23 Tex. preponderance of the evidence that Civ. App. 280. the plaintiff fastened together five 62 — Where an instruction defined cars, etc., was not erroneous as tell- and explained negligence and con- ing the jury that only five cars were tributory negligence, and mentioned § 124] Charging on Facts or Weight op Evidence. 299 to find for the plaintiff if they find that certain facts exist, or to find for the defendant if they find that such facts do not exist, 63 are not erroneous. In an action for injuries caused by an automobile, an instruction as to the duty of a driver of an automobile con- taining the phrase "moving quietly as it does" is not erroneous as a comment on the facts when the court' refers to automobiles in general. 64 In an action for the wrongful death of a servant caused by the explosion of a pipe line leading from a boiler, an instruction that if the jury believed from the evidence that the "T" in question [a pipe in the shape of a T used to connect three pipes] was defective and dangerous in its use, and that such condition could have been discovered by certain tests and that defendant failed to use such tests, etc., was not erroneous as it did not indicate the opinion of the court as to the facts. 65 In an action for personal injuries due to being struck by a motor truck, an instruction referring to the place where the accident happened as "in the thickly settled part of the city" was not such a comment upon the facts as necessitated a reversal, where the place of accident was not very ma- terial. 68 In an action for damages to grazing lands caused by the specifications of negligence al- negligence is made out against the leged in the complaint and stated defendant, and that, if the jury be- that if a failure to perform one lieve certain other facts, this prima of the things alleged was established facie case is rebutted, is not open and if "you find that in the exer- to the objection that it is on the cise of due care they [defendant] weight of the evidence. Texas & P. should have done some one or all of Ry.- Co. v. Rice, 24 Tex. Civ. App. these things," etc., it was not ob- 374. jectionable as telling the jury what 64 — Domke v. Gunning, 62 Wash, facts constituted negligence, as the 629, 114 Pac. 436. quoted words clearly left the ques- 65 — Texas Power & Light Co. v. tion to the jury. Wade v. Southern ■ Bird, — Tex. Civ. App. — , 165 S. Ry., 89 S. C. 280. W. 8. 63 — An instruction that, if the 66 — Sheffield v. Union Oil Co. of jury believe from the evidence eer- California, 82 Wash. 386, 144 Pac. tain facts, a prima facie case of 529. 300 Instructions to Juries. [§124 sheep, an instruction that "the evidence shows the follow- ing surveys were alleged to have been damaged," naming them, and concluding with the words "you will consider said surveys in arriving at your verdict" was not on the weight of evidence, the evident purpose of the instruction being to confine the jury to the surveys named. 67 § 125. Same — Instructions in criminal cases not violating prohibition. The following instructions in criminal cases have been objected to as being on the weight of the evidence, and held not objectionable on that ground: Instructions merely stating the issues; 68 or contentions; 69 or generally requir- ing the jury to ascertain the truth ; 70 instructions contain- ing a hypothetical statement of the facts; 71 instructions stating admitted or undisputed facts ; 72 instructions stat- 67— Tippett v. Corder, — Tex. Civ. App. — , 117 S. W. 186. 68— State v. Glenn, 88 S. C. 162. 69 — An instruction that the state contends that the defendant shot down deceased when there was no danger to his life, etc., and when de- ceased was fleeing from the conflict, held to be a mere statement of the state's contention. State v. Glenn, 88 S. C. 162. 70 — An instruction that: "You are prepared to hear the charge of the court and to retire after hearing that charge and go over the testi- mony and extricate from the testi- mony the truth of the case," is gen- eral and merely requires the jury to ascertain the truth of the case from the testimony, and such instruction is not objectionable as declaring that there is both truth and falsity in the testimony. State v. Jones, 90 S. C. 290. 71— State v. Glenn, 88 S. C. 162. A charge that if the defendant shot out of a spirit of revenge when there was no danger of losing his life, etc., and he pursued a man who was retreating, "you could not say that was self-defense," held only a hypothetical statement of facts. State v. Glenn, 88 S. C. 162. 72— State v. Glenn, 88 S. C. 162. The constitutional requirement that the judge shall not state the facts in charging, the jury, does not prohibit such reference to the undis- puted evidence as is necessary to en- able the jury to apprehend the law applicable to the concrete issue of fact which they are to decide. State v. Driggers, 84 S. C. 526, 137 Am. St. Eep. 855, 19 Ann. Cas. 1166. An instruction in a prosecution for murder that, "Now, in this case, you .will ask yourself the question: Was it necessary to shoot the first time? Was it necessary to shoot the second time? Was it necessary to shoot the third time? Was it neces- sary to shoot the fourth or fifth time? § 125] Charging on Facts ok Weight of Evidence. 301 ing the law applicable to the facts ; 73 instructions stating that certain circumstances may be considered in determin- ing the defendant's guilt; 74 instructions that evidence of other offenses may be considered; 75 instructions that there is "some evidence tending to show" a certain fact; 76 If you find there were shots fired, was it necessary to shoot at all?" is not erroneous where there was no dis- pute in the evidence that defendant shot four or five times. State v. Glenn, 88 S. C. 162. 73 — An instruction that if defend- ant, an adult male committed an ag- gravated assault upon ff, a female person by catching hold of the clothes of G with his left hand and by put- ting his right hand under her cloth- ing^ind upon her leg against her will and consent, they would find him guilty, etc., was not a charge on the weight of evidence but a direct appli- cation of the law to the facts. Sam- ple v. State, 52 Tex. Cr. App. 505, 124 Am. St. Rep. 1103. 74 — An instruction stating certain facts and continuing with the words, ' ' these are circumstances which tend to establish the defendant's guilt, but are not alone sufficient to war- rant a conviction "is not erroneous as a declaration as to the weight to be given to the evidence, but is a mere statement that the facts might be considered for the purpose of de- termining the issue. Hogue v. State, 93 Ark. 316. 75 — An instruction that the jury should not consider the testimony as to other offenses for any other purpose than in passing on the credibility of defendant as a witness, if they be- lieved there was other testimony showing or tending to show that de- fendant had been charged with other offenses, is not on the weight of the testimony. Overstreet v. State, — Tex. Cr. App. — , 150 S. W. 899. On a prosecution for indecent ex- posure, an instruction "that ' ' the evi- dence introduced in this case of acts of the exposure of the person of the defendant other than the act charged in the information, you cannot con- sider as substantive evidence as to the guilt, of the defendant; but it can only be considered as bearing on the intent of the defendant, and you cannot consider it for any other pur- pose" was not erroneous as on the weight of the evidence in that the word "substantive" gave the idea that there was sufficient evidence to convict without such evidence. Har- vey v. State, 57 Tex. Cr. App. 5, 136 Am. St. Eep. 971. On a prosecution for larceny of money by means of a conspiracy to defraud through pretended horse races, an instruction as to the gen- eral scheme for defrauding people, and stating that evidence had been introduced showing that other par- ties had been defrauded to show such conspiracy, but also stating that before such evidence could be con- sidered it must be found that de- fendant entered into a general con- spiracy of that character, was not erroneous in referring to the evi- dence and its tendency in that it in- dicated an opinion of the court on a material fact. State v. Dobbins, 152 Iowa 632, 42 L. R. A. (N. S.) 735n. 76— People v. Flannelly, 128 Cal. 83, 60 Pac. 670. 302 Instructions to Juries. [§ 125 instructions containing illustrations not referring to the facts of the case at bar. 77 While the giving of separate instructions in such manner as to single them out is not commendable, it does not con- stitute prejudicial error where the court in the whole charge directs the jury to consider all the facts and circumstances proved in the case. 78 When a defendant has, after the commission of crime and before trial, made statements tending to show his guilty connection with such crime, and such statements are proven by the state, the jury may believe what he has said against himself and reject what he has said tending to show his innocence, and in such case the giving of instructions which comment on the evidence do not constitute reversible error. 79 In a prosecution for rape, an instruction as to extrajudi- cial statements in the nature of confessions, that ' ' if verbal statements of the defendant have been proved in this case, you may take them into consideration with all other facts An instruction in a, criminal case instance, if you go to a private house stating, "Here is evidence that the in this city about 2 o'clock in the homicide was committed within the day, and see the family sitting corporate limits, * * * and around the table in the dining room, there is other evidence of it, to with a roast turkey on one end of which I will call your attention," the table, and a boiled ham on the etc., is not a violation of a statute other, you would naturally conclude forbidding the court to express an that those people were at dinner, that opinion as to whether a fact is fully that was their dinner hour, and that or sufficiently proved. State v. Ed- they were at dinner. You draw wards, 126 N. C. 1051. There is no the inference from the facts shown, objection to a charge declaring that Now you can tell a gambling den evidence has been offered tending to from the facts shown, from the facts prove a certain material fact in the proven, and reach your conclusion" case, if it is disclosed by the record was merely intended as an illustra- that the statement is true beyond tion to show the manner of consid- any possible question. People v. ering circumstantial evidence, and Flannelly, 128 Cal. 83, 60 Pac. 670. was not prejudicial. State v. Lane, 77— State v. Godfrey, 60 S. C. 498. 82 S. C. 144. An instruction on a trial for keep- 78 — Tillman v. State, 112 Ark. ing a gaming house, that "the state 236. relies on certain facts from which 79 — State v. Creeley, 254 Mo. 382. you reach certain conclusions; for §125] Charging on Facts ob Weight of Evidence. 303 and circumstances. What the proof may. show you, if any- thing, that the defendant had said against himself, is pre- sumed to be true, because against himself, but anything you may believe from the evidence the defendant said in his own behalf, you are not obliged to believe, but you may treat the same as true or false, just as you believe it true or false, when considered with a view to all the facts and circumstances in the case," was held to approach very nearly to a comment upon the evidence, and in justice to the defendant it was required that the statements made after the offense should be considered altogether by the jury, as the defendant was also entitled to the benefit of statements in favor of himself. 80 On a prosecution for homicide an instruction that if the jury believed beyond a reasonable doubt that the defendant with implied malice and with a deadly weapon or instru- ment reasonably calculated and likely to produce death by the mode and manner of its use, in a passion aroused without adequate cause and not in defense of himself and with intent to kill, did shoot and kill, etc., you will find him guilty of murder in the second degree, was not on the weight of evidence as. charging that the accused had implied malice against the deceased when he shot him. 81 On a trial for murder, a charge that the state contends that the defendant did with a certain pistol inflict a mortal wound on W. and the state contends that this wound was inflicted with malice . aforethought, either express or im- plied, and under the law and facts of this case the defendant would be guilty of the offense of murder as charged, was not erroneous. 82 An instruction in a murder case that evidence to estab- lish an alibi, like any other evidence, may be open to special observation, as persons may perhaps fabricate it with 80 — State v. Nibarger, 255 Mo. 82— Hawkins v. State, 141 Ga. 289. 212. 81— Young v. State, 54 Tex. Cr. App. 417. 304 Instructions to Juries. [§ 125 greater hopes of. success or less fear of punishment than most other kinds of evidence, does not tell the jury that in the instant case they are to attach less weight to the evi- dence of alibi than to other evidence. 83 On a trial for murder, where it appeared that defendant and deceased had married sisters, and an attempt to justify the killing was based on the fact that deceased had tried to get defendant's wife to desert him, the court charged that, "if you believe from the evidence that the deceased (H. ) either persuaded the wife of the prisoner to leave his bed and board, or afforded her shelter or protection (if she quit him of her own accord), in neither case would such fact excuse the killing. ' ' This was held not an intimation of opinion as to what had been proved by the evidence. 84 On a prosecution for grand larceny, the court instructed the jury that, if satisfied beyond a reasonable doubt ' ' that defendant killed or had the calf killed by the witnesses, and that she then cut out the brand and cut off the ears of the ' calf, and burned up the ears and part of the hide so cut out, this would be a circumstance to be considered by you, indi- cating that the defendant was not the owner of the calf, and of her knowledge that she was, not the owner." It was held that the word ' ' indicating, ' ' as used in the instruc- tion, would be understood by the jury as tending to show a certain result, and that the language of the instruction is not in violation of the constitutional provision prohibit-, ing the court from charging the jury with respect to matters of fact. 85 An instruction that, "unless the evidence established beyond a reasonable doubt that the defendant filed a false claim with intent to defraud, * * * they [the jury] must acquit; that it was not enough to prove that the claim was false, but the state must further prove beyond a reason- 83— People v. Wong Ah Foo, 69 85— State v. Loveless, 17 Nev. 424, Cal. 180, 10 Pac. 375. 30 Pac. 1080. 84 — State v. Dennison, 44 LarAnn. 135. § 126] Charging on Facts ok Weight of Evidence. 305 able doubt tbat the defendant filed it with the intention of defrauding, * * * and, if the state has not so proved that fact, they must acquit; but that the intention with which the act charged was done * * * might be in- ferred from all the facts and circumstances proved in the cause," — was not erroneous. 86 § 126. Same — Curing error by other instructions. Where a judge has expressed an opinion as to the facts the error is not obviated by the fact that other portions of his charge tell the jury that all questions of fact are ex- clusively for them, 87 neither is the error cured by the giving of further instructions of like import, 88 or by repeated 86— Ferris v. State, 156 Ind. 224. See also, Aston v. State (Tex. Cr. App.) 61 S. W. 307. 87 — People v. Kindleberger, 100 Cal. 367, 34 Pac. 852; China v. City of Sumter, 51 S. C 453. Error is not cured by giving of in- struction at the same time with the expression of opinion. Shorb v. Kin- zie, 100 Ind. 429. 88 — Where the court comments on the evidence, or intimates or express- es an opinion as to its weight and suf- ficiency, the error in so doing is not cured by the giving of further in- structions that the jury are the sole judges of the weight of the evidence and the credibility of the witnesses. Arkansas. Bauschka v. Western Coal & Mining Co., 95 Ark. 477. California. People v. Kindleber- ger, 100 Cal. 367, 34 Pac. 852; Peo- ple v. Chew Sing Wing, 88 Col. 268, 25 Pac. 1099. Indiana. Shorb v. Kinzie, 100 Ind. 429. Michigan. People v. Lyons, 49 Mich. 78. Nevada. State v. Ah Tong, 7 Nev. 148. / Blashfield Vol. 1—20 North Carolina. State v. Dick, 60 N. C. 440. North Dakota. Territory v. O'Hare, 1 N. D. 30. South Carolina. State v. White, 15 S. C. 393. Contra, Humphreys v. Collier, Breese (111.) 299; White v. Terri- tory, 1 Wash. St. 279, 24 Pac. 447. Error in instructing the jury that the testimony of a witness is entitled to little weight is not cured by an instruction that the jury are the sole judges of the weight of a witness' testimony. People v. Lyons, 49 Mich. 78. Error is not cured by an instruc- tion that the jury are not bound by any opinion which the court may have expressed on the evidence. People v. Chew Sing Wing, 88 Cal. 268, 25 Pac. 1099. The error is not cured by an in- struction that the court cannot ex- press any opinion on the" facts. Peo- ple v. Kindleberger, 100 Cal. 367, 34 Pac. 852; State v. White, 15 S. C. 393. 306 Instructions to Juries. [§126 statements that the jury are the exclusive judges of the weight of the evidence and the credibility of the witnesses. 8 " ' ' The impression . having been once made, it would be very difficult if not impossible thus to obliterate it, and the result would be that the jury would be more or less influ- enced by an opinion coming from so high a source as an intelligent judge, whose mind has been trained to weigh tes- timony and determine its force and effect." 90 However, the fact that the court, at the time of giving the instruction complained of, explains fully that the jury are the judges of the facts, ought to go a long way in supporting an instruc- tion where the error is not clear, but is only arrived at by a nice construction of language incautiously used. 91 " § 127. Same — Indicating opinion by questions asked the jury. Error in charging on the weight of the evidence may result from the giving of instructions in the form of inter- rogatories to the jury. Such questions may be so worded as to clearly express the judge 's opinion, in which case the error is reversible just as if the instruction was in the form 89 — Territory v. O'Hare, 1 N. D. 30. Where the court made an argu- mentative comparison of the relative credibility of the principal wit- nesses for the defense and the prin- cipal witnesses for the prosecution, their testimony being vital and in direct conflict, and in so doing dis- paraged the credibility of witnesses for the defense, and conveyed to the jury in plain terms that the court entertained strong suspicions of the witnesses tor the defense, it was held reversible error, notwithstand- ing the court repeatedly told the jury that they were the exclusive judges of the weight of the evi- dence and the credibility of the wit- nesses. Territory v. O'Hare, 1 N. D. 30. 90— China v. City of Sumter, 51 S. C. 453. 91 — See People v. Carey, 125 Mich. 535. An instruction that ' ' a mere show- ing of delay in the movement of live stock is not sufficient to make the defendants liable therefor without a showing by the plaintiff that such delay is due to the negligence of the defendants," held not upon the weight of the evidence when read with the general charge wherefore its giving was not error. Good v. Texas & P. By. Co., — Tex. Civ. App. — , 166 S. W. 670. § 128] Chaeging on Facts oe "Weight of Evidence. 307 of a direct and categorical statement, 92 thus it has been held error for the judge, in charging the jury, to ask, "Is that the way an honest man would act? * * Do honest people act so?" as such questions amounted to an expression of opinion on the facts. 93 § 128. Same — Violation of ride otherwise than by express , instructions. The error of expressing or intimating an opinion as to the weight of evidence, or the credibility of witnesses, will work a reversal, although such opinion is not stated in an express instruction. Such an opinion may be expressed dur- ing the course of the trial, 94 in rulings as to evidence, 95 92— State v. Norton, 28 S. C. 572; State v. Addy, 28 S. C. 4; State v. Jenkins, 21 S. C. 595; Freidrich v. Territory, 2 Wash. St. 358, 26 Pac. 976. 93 — State v. Jenkins, 21 S. C. 595. 94 — The trial court has no more right to volunteer before the jury his opinion upon a material fact in con- troversy, while deciding a question of law on the trial, than he has to charge the jury in respect to such fact. If he express an opinion, it is a wrong, requiring redress as im- peratively in case of a mere inad- vertence as in the ease of a wilful evasion of the law. State v. Har- kin, 7 Nev. 377. Where the trial court, during the course of the trial of a civil case, said: "This was a civil suit, but that, if the jury considered the evi- dence, * * * they would find the case decidedly criminal," such re- mark was held reversible error. Furhman v. City of Huntsville; 54 Ala. 263. Where the defense to a suit to re- cover the price of a map was that the view of the defendant 's resi- dence therein was not correct, and defendant 's counsel asked the judge if he would know the view shown on the map to be the view of de- fendant's residence, to which he re- plied that he did not know that he would, this was held reversible er- ror. Andreas v. Ketcham, 77 111. 377. 95 — Unless expression of opinion is rendered necessary in ruling on the admissibility of evidence, such ex- pression of opinion, whether ad- dressed to the jury or to counsel, or whether given as an instruction or not, will, in general, be a ground for reversal. Alabama. Fuhrman v. City of Huntsville, 54 Ala. 263. California. McMinn v. Whelan, 27 Cal. 300. Illinois. Andreas v. Ketcham, 77 HI. 377. Nevada. State v. Harkin, 7 Nev. 377. North Carolina. State v. Dick, 60 N. C. 440. The right to a decision on the facts by a jury uninfluenced and unbiased by the opinion of' the judge * * * 308 Instructions to Jueies. [§128 or by words or conduct showing belief or disbelief in the testimony of a witness. 96 It has been held not improper however to state the reasons as to the admissibility or rejection of evidence though such statement necessarily involved an expression of opinion as to other evidence, 97 and in pne case in ruling upon the cannot be lawfully denied, by the simple evasion of looking at the counsel instead of at the jury, or of foisting the opinion into a ruling upon testimony. State v. Harkin, 7 Nev. 383. Where the court, in declining de- fendant's request to withdraw cer- tain confessions, told the state's at- torney he might withdraw them if he liked, but he declined to do so, the reviewing court said: "This seems to us to be an expression of opinion, on the part of -the judge, that the ease was sufficiently proved without the aid of the confessions," and . the judgment was reversed. State v. Dick, 60 JST. C. 440. 96 — The influence of the trial judge with the jury is necessarily great because of his authoritative position, and by words or actions he may materially prejudice the rights of a party. By words or conduct he may, on the one hand, support the character or testimony of a witness, or, on the other, may destroy the same, in the estimation of the jury, and thus his personal influence is exerted to the unfair advantage of one of the parties, with a correspond- ing detriment to the cause of the others. McMinn v. Whelan, 27 Cal. 320. A remark of the judge vouching for the respectability of a witness whose character was called into question during the course of the trial was held reversible error where the testimony of such witness was material. McMinn v. Whelan, 27 Cal. 300. 97 — If the admissibility of cer- tain evidence depends upon the es- tablishment of some necessary pre- liminary facts, it is not improper for the judge, in passing on such ques- tion, to announce, for the guidance and benefit of counsel, the reasons which controlled him in the admis- sion or rejection of the evidence; that this necessarily involves the ex- pression of an opinion upon the evi- dence already introduced, and that such opinion cannot be assigned for error. This rule is well illustrated by a case in which the admissibility of certain evidence depended on the preliminary proof of a promise by one of the parties. In deciding that the evidence was admissible, the court said "that, as the case then stood, a prima facie promise had been proven," and this remark was assigned as error. The reviewing court said th'at, "while the expres- sion of the learned judge that, as the ease then stood, a prima facie prom- ise had been proven, might be the subject of criticism if presented to the jury as a formal instruction, we think it meant no more, as used, than that evidence had been given tending to show the promise, suffi- cient to lay the foundation for the introduction of the proposed testi- mony." Eeed v. Clark, 47 Cal. 200. § 129] Charging on Facts oe Weight or Evidence. 309 admissibility of certain testimony and in admitting it as part of the res gestae, a statement that, "the law does not lay down any specific time as to what length of time shall intervene. Of course, -unless it is part of the res gestae, that would not be relevant. This witness says in his opinion, no more than five minutes had elapsed; under the evidence I will admit what he says," was held not erroneous as an expression of an opinion on the evidence. 98 A statement by the judge, on refusing a requested in- struction that "I do not regard this request as being in accordance with the evidence, — it is upon a state of facts which the evidence does not warrant ' ' has also been held not improper." Of course, if the court expresses an opinion during the conduct of the trial, but not in the presence or hearing of the jury, there can be no ground of complaint, 1 and an opinion expressed by the court during the progress of the trial, which does not appear to have been given in charge to the jury, or to have been in any way connected with a refusal to charge, or with the admission or rejection of testimony, has been held not a subject of appellate re- § 129. Jurisdictions where practice is permissible, or is not prohibited. At common law it was proper for the trial judge in charg- ing the jury to express his opinion as to the weight of the evidence, or any part of it, or to comment on the evidence or state what it tended, or did not tend to prove, 3 and 98 — Amos v. State, 14 Ga. App. 170; Belcher v. Prittie, 4 Moore & 589. S. 295, 10 Bing. 408; Foster v. Steele, 99 — Pillsbury y. Sweet, 80 Me. 5 Scott 28; Attorney General v. 392. Good, 1 McClel. & Y. 285; Pennell 1 — Phillips v. Beene, 16 Ala. 720. v. Dawson, 18 C. B. 355; Davidson v. 2— Phillips v. Beene, 16 Ala. 720. Stanley, 2 Man. & G. 721; Calmady 3 — Hale, Hist. Com. Law 147; v. Eowe, 6 C. B. 892; Colledge 's Case, Fisher's Case, 1 Cobbett, State Tr. 8 Cobbett, State Tr. 550; Sutton v. 395; Solarte v. Melville, 7 Barn. & Sadler, 3 C. B. (N. S.) 87. C. 435; Petty v. Anderson, 3 Bing. 310 Instructions to Juries. [§129 such rule obtains in jurisdictions where no statutory or constitutional provisions prohibiting the practice, have been enacted, 4 and in the federal courts, 5 which are not affected by such statutes, 6 or by the various state constitutional 4 — Connecticut. Dick v. Colonial Trust Co., 88 Conn. 93; Smith v. Ford, 82 Conn. 653; Barnes v. City of Waterbury, 82 Conn. 518; Setchel v. Keigwin, 57 Conn. 473; Corn- stock 'a Appeal, 55 Conn. 214; First Baptist Church and Congregation in Stamford v. Eouse, 21 Conn. 160. Minnesota. Larson v. Barlow, 112 Minn. 246; First Nat. Bank of De- corah v. Holan, 63 Minn. 525; Ames v. Cannon E. Mfg. Co., 27 Minn. 245. New Jersey. State v. Overton, 85 N. J. L. 287; Foley v. Loughran, 60 N. J. L. 464; Engle v. State, 50 N. J. L. 272; Castner v. Sliker, 33 N. J. L. 507. New York. Hurlburt v. Hurlburt, 128 N. Y. 420; Allis v. Leonard, 58 N. Y. 288; Althorf v. Wolfe, 22 N. Y. 355; s. c, 2 Hilt. 344; Hager v. Hager, 38 Barb. 92; Stephens v. People, 4 Parker Cr. 396. Ohio. Abram's Lessee v. Will, 6 Ohio 165; Bossert v. State, Wright 113. Pennsylvania. Commonwealth v. Marcinko, 242 Pa. 388"; Monier v. Pennsylvania Eapid Transit Co., 227 Pa. 273; Didier v. Pennsylvania Co., 146 Pa. St. 582; Shovlin v. Common- wealth, 106 Pa. St. 369; Cathcart v. Commonwealth, 37 Pa. St. 108; Por- ter v. Seiler, 23 Pa. St. 424; Springer v. Stiver, 16 Pa. Super. Ct. 184. Rhode Island. State v. Lynott, 5 E. I. 295. Utah. People v. Lee, 2 Utah 441. Vermont. Seviour v. Eutland E. Co., — Vt. — , 91 Atl. 1039; Sawyer v. Phaley, 33 Vt. 69; Yale v. Seely, 15 Vt. 221; Stevens v, Talcott, 11 Vt. 25. Wisconsin. Goldsworthy v. Town of Linden, 75 Wis. 24; Massuere v. Dickens, 70 Wis. 83; Ketchum v. Bbert, 33 Wis. 611; Benedict v. State, 14 Wis. 459. 5 — United States. Simmons v. United States, 142 U. S. 148, 35 L. Ed. 968; Aetna Life Ins. Co. v. Ward, 140 U. S. 76, 35 L. Ed. 371; Pinker- ton v. Ledoux, 129 U. S. 346, 32 L. Ed. 706; Eucker v. Wheeler, 127 U. S. 85, 32 L. Ed. 102; Eussell v. Ely, 2 Black. 575, 17 L. Ed. 258; Mitchell v. Harmony, 13 How. 129, 14 L. Ed. 82; M'Lanahan v. Universal Ins. Co., 1 Pet. 181, 7 L. Ed. 104; Vanars- dale v. Hax, 47 C. C. A. 31, 107 Fed. 878; Aerheart v. St. Louis, I. M. & S. Ey- Co., 40 C. C. A. 171, 99 Fed. 907; Illinois Cent. E. Co. v. David- son, 22 C. C. A. 306, 76 Fed. 517; Watts v. Southern Bell Telephone & Telegraph Co., 66 Fed. 453; St. Louis, I. M. & S. Ey. Co. v. Phillips, 13 C. C. A. 315, 66 Fed. 35; Chicago, E. I. & P. By. Co. v. Stahley, 11 C. C. A. 88, 62 Fed. 363; Consequa v. Wil- lings, 1 Pet. C. C. 225, Fed. Cas. No. 3, 128. 6— The right of judges of the fed- eral courts to comment on the evi- dence, and express opinions as to matters of fact in causes tried be- fore them, is not affected by statutes of states in which they are holding court, forbidding this practice. These statutes can in no wise con- trol the court's discretion in this regard. Yicksburg & M. E. Co. v. § 129] Charging on Facts or Weight op Evidence. 311 provisions. 7 In some of the states where the right exists, it is seldom 1 exercised ; 8 and in one state the practice has been declared obsolete. 9 Putnam, 118 U. S. 545, 30 L. Ed. 257; Nudd v. Burrows, 91 IT. S. (1 Otto.) 440, 23 L. Ed. 290. See also, Indianapolis & St. L. E. E. v. Horst, 93 U. S. (3 Otto.) 291, 23 L. Ed. 898. In construing the act of congress (Act Cong. June 1, 1872 [17 St. at Large, p. 197, § 5]) declaring "that the practice, pleadings, and forms and modes of proceeding in other than equity and admiralty causes in the circuit and district courts * * * shall conform, as near as may be, ' ' to the same things "existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, rt the Supreme Court of the United States held that this act did not apply to instructions to the jury, and in enumerating the evils which this statute was intended to remedy said: "The personal admin- istration by the judge of his duties while sitting upon the. bench was not complained of. No one objected, or sought a remedy in that direction. * * * The personal conduct and administration of the judge in the discharge of his separate functions is, in our judgment, neither prac- tice, pleading, nor a form nor mode of proceeding, within the meaning of those terms as found in the con- text." Nudd v. Burrows, 91 TJ. S. (1 Otto.) 440, 23 L. Ed. 290. 7— The right of federal judges to express an opinion on the facts is not affected by organic provisions of states in which they are sitting, pro- hibiting the practice. Organic pro- visions have no more effect on this right than statutes. St. Louis, I. M. & S. E. v. Vickers, 122 U. S. 360, 30 L. Ed. 1161. 8 — Seviour v. Eutland E. Co., — Vt. — , 91 Atl. 1039. 9— State v. Pike, 49 N. H. 399, 6 Am. Eep. 533. Rule in New Hampshire. In some of the earlier decisions it is said that it is not the ordinary practice for the court to express an opinion in regard to the weight of the evidence. (Cook v. Brown, 34 N. H. 460; Haven v. Eichardson, 5 N. H. 126.) In another early decision it appeared that the trial judge had ex- pressed an opinion on the evidence which was clearly favorable to the party complaining, and the judg- ment was affirmed. The reviewing court said: "If the verdict had been for the plaintiff, and the exception were by the defendant, it would de- serve consideration whether this bearing upon the motives of the party who caused the publication might not have had its effect upon the verdict." (McDougall v. Shir- ley, 18 N. H. 109.) In a later de- cision, the court said that the prac- tice of expressing an opinion on ' the weight of the evidence had become obsolete (State v. Pike, 49 N. H. 399, 6 Am. Eep. 533), and de- cisions subsequent to this contain expressions which seem to bear out this view. (See Orr v. Quimby, 54 N. H. 632; Aldrich v. Wright, 53 N. H. 398, 16 Am. Eep. 339.) It has nevertheless been held that it is not irregular for the trial judge to make 312 Instructions to Juries. [§129 In Michigan the later decisions are against the right of the court to express an opinion as to the weight of the evi- dence or the credibility of witnesses. 10 § 130. Same — How strong an expression of opinion is per- missible. In general the trial judge may freely express the impres- sions made on his mind by the evidence, thus giving the jury the benefit of his judicial experience and suggesting to such suggestions in relation to the facts as they may suppose will be useful to the jury, the matter being left to them for decision. (Cook v. Brown, 34 N. H. 460; Flanders v. Colby, 28 N. H. 34; Patterson v. Colebrook, 9 Fost. [N. H.] 94.) Ac- cordingly, it was held not improper for the court to suggest to the jury that they could judge better of the credit to be given to a witness by his appearance on the stand than by any other circumstances. (Flanders v. Colby, 28 N. H. 34.) 10 — Rule in Michigan. In the earliest decision on this question in Michigan, it was held that the parties had no right to de- mand instructions intimating an opinion on the evidence. (Perrott v. Shearer, 17 Mich. 48.) In the next decision there is a dictum to the effect that the judge may express an opinion as to the credibility of wit- nesses if he expressly direct the jury to decide the question for themselves, without reference to his views. (Sheahan v. Barry, 27 Mich. 217.) This decision was followed by an- other, upholding a refusal to in- struct as to what weight should be given to the evidence, on the ground that such an instruction would con- stitute a usurpation of the province of the jury. (Blackwood v. Brown, 32 Mich. 104.) The next deci- sion in point of time enunciated the doctrine that it was error to intimate an opinion on the credibility of a witness, and that the judgment of the jury must in no de- gree be subordinate to the judge 's opinion of the facts. (Mawich v. Elsey, 47 Mich. 10.) The next three decisions hold that it is erroneous for the court to express any opin- ion on the weight of the evidence or the credibility of witnesses. (Letts v. Letts, 91 Mich. 596; Wes- sels v. Beeman, 87 Mich. 481; Peo- ple v. Lyons, 49 Mich. 78.) A later decision seems to recognize the cor- rectness of what was said in the first, but says that the rule must not be extended to cases where the in- struction implies a duty on the part of the jury to yield their judgment to that of the judge. (Blumeno v. Grand Bapids & I. R. Co., 101 Mich. 325.) The cases of Perrott v. Shearer and Letts v. Letts, ante, were cited in a comparatively recent case in which it was held that a charge which clearly intimates to the jury the opinion of the court that they ought to disallow a claim is erro- neous. Buell v. Adams, 157 Mich. 248. § 130] Charging on Facts oe Weight of Evidence. 313 them points of weakness or strength that they might other- wise overlook,* 11 provided always that the ultimate deci- sion of disputed matters of fact is fairly left to them, 12 and the expression of opinion does not amount to a binding direction. 13 In one case it was said that there is no fixed rule deter- 11 — State v. Overton, 85 N. J. L. 287. The judge is the best adviser the jury can have. Com. v. Zuern, 16 Pa. Super. Ct. 588. 12 — Dick v. Colonial Trust Co., 88 Conn. 93; Larson v. Barlow, 112 Minn. 246; State v. Overton, 85 N. J. L. 287; Seviour v. Rutland E. Co., — Vt. — , 91 Atl. 1039. The jury must be impressed with the feeling that the responsibility of their verdict rests on them alone, and not on the court. Holder v. State, 5 Ga. 444. 13 — Commonwealth v. Marcinko, 242 Pa. 388. The jury must be made aware of their right and duty to decide the facts on their own responsibility. The ultimate decision of the facts must be fairly left to the jury, the expression of opinion must stop short of a binding direction. Connecticut. Comstock's Appeal, 55 Conn. 214. Minnesota. First Nat. Bank of Decorah v. Holan, 63 Minn. 525. New Jersey. Foley v. Loughran, 60 N. J. L. 464. New York. Nolton v. Moses, 3 Barb. 31; Bulkeley v. Keteltas, 4 Sandf. 450; Dean v. Hewit, 5 Wend. '257. Pennsylvania. Pool v. White, 175 Pa. St. 459; Cathcart v. Com., 37 Pa. St. 108; Com. v. Zuern, 16 Pa. Super. Ct. 588; Springer v. Stiver, 16 Pa. Super. Ct. 184; Com. v. Warner, 13 Pa. Super. Ct. 461; Com. v. Winkel- man, 12 Pa. Super. Ct. 497. Rhode Island. State v. Lynott, 5 R. I. 295. Vermont. Sawyer v. Phaley, 33 Vt. 69; Stevens v. Talcott, 11 Vt. 25. Wisconsin. Massuere v. Dickens, 70 Wis. 91; Ketchum v. Ebert, 33 Wis. 611; Fowler v. Colton, 1 Pin. 331. United States. Haines v. Mc- Laughlin, 135 U. S. 584, 34 L. Ed. 290; Rucker v. Wheeler, 127 U. S. 85, 32 L. Ed. 102; Eastern Transp. Line v. Hope, 95 U. S. (5 Otto.) 297, 24 L. Ed. 477; Garrard v. Reynolds' Lessee, 4 How. (IT. S.) 123, 11 L. Ed. 903; Vanarsdale v. Hax, 47 C. C. A. 31, 107 Fed. 878; Herrick v. Quig- ley, 41 C. C. A. 294, 101 Fed. 187; Aerheart v. St. Louis, I. M. & S. By. Co., 40 C. C. A. 171, 99 Fed. 907; Illinois Cent. R. Co. v. Davidson, 22 C. C. A. 306, 76 Fed. 517; Watts v. Southern Bell Tel. & Tel. Co., 66 Fed. 453; Chicago, R. I. & P. Ry. Co. v. Stahley, 11 C. C. A. 88, 62 Fed. 363; Atchison, T. & S. F. R. Co. v. How- ard, 1 C. C. A. 29, 49 Fed. 206; Sorenson y. Northern Pac. R. Co., 36 Fed. 166. English. Fisher 's Case, 1 Cobbett, State Tr. 395; Brembridge v. Os- borne, 1 Starkie 374; Pennell v. Daw- son, 18 C. B. 355; Belcher v. Prittie, 4 Moore & S. 295; Foster v. Steele, 5 Scott 28. 314 Instructions to Juries. [§ 130 mining how strong an expression of opinion the court may make in regard to the truth or weight of the testimony, 14 and very strong expressions of opinion have been upheld, the view being taken that considerable latitude must be left with the trial court in commenting on the evidence. 15 Thus an instruction has been held not prejudicial when it was objected to. as ridiculing the defendant's evidence, 10 and in an action for damages for breach of warranty of a sale of a threshing separator, an instruction containing the words, ' ' The contract will be sent to the jury box with you, gentlemen, and you can wrestle with it at your pleasure. I cannot read it in the present light," was held not an un- favorable comment on the contract as having been printed in small type. 17 Where a railroad company is sued for injuries to a plain- tiff at a crossing, and the engineer is accused of heartless or grossly negligent conduct, and testifies, the court may state that the reply of a witness seems to be that of a "manly man." 18 The latitude of the federal judges in charging a jury on the facts is great, and the court has the right to express his opinion and advise the jury upon the plaintiff's failure to produce a certain witness if the jury is given to under- stand that it is not bound by such opinion ; 19 also, an in- struction that„ if the jury find on the issues in favor of 14 — State v. Koger, 7 La. Ann. 382. Scott, 28; Calmady v. Eowe, 6 C. B. 15 — Pennsylvania. Fredericks v. 861; Doe d. Strickland v. Strickland, Northern Cent. R. Co., 157 Pa. St. 8 C. B. 743; Duberley v. Gunning, 4 103, 22 L. R. A. 306n; Com. v. Term R. 651; Sawyer v. JPhaley, 33 Doughty, 139 Pa. St. 383; Leibig v. Vt. 69; Rex v. Burdett, 4 Barn. & Steiner, 94 Pa. St. 472; Johnston v. Aid. 167. Com., 85 Pa. St. 54, 27 Am. Rep. 622; 16— Benedict v. Everard, 73 Conn. Sailor v. Hertzogg, 10 Pa. St. 296. 157. United States. Doyle v. Boston & 17 — Buchanan v. Minneapolis A. R. Co., 27 C. C. A. 264, 82 Fed. Threshing Mach. Co., 17 N. D. 343. 869. 18 — Simmons v. Pennsylvania R. English. Davidson v. Stanley, 2 Co., 199 Pa. St. 232. Man. & G. 721; Belcher v. Prittie, 4 19— Young v. Corrigan, 127 C. C. Moore & S. 295; Foster v. Steele, 5 A. 174, 210 Fed. 442. § 131] Charging on Facts or Weight op Evidence. 315 plaintiff, "the court will accept a reasonable and fair ver- dict as a proper settlement of the controversy* between the parties," while objectionable in that the jury have, nothing to do with the question whether the court will or will not accept their verdict, does not take from the jury their power to pass upon the facts in the case under the instructions of the court. 20 Probably the only limitation on this right is that the court should not give a binding instruction to find one way or the other; 21 or a direction so positive as to prevent them from exercising their own judgment. 22 Error cannot be assigned, though the opinion of the judge may have great influence upon the verdict, 23 and is unfa- vorable to the party complaining. 24 § 131. Same — Necessity of expressing Opinion. In many cases it is the duty of the trial judge to state his opinion as to the evidence, 25 but as a general rule the prac- 20 — Herrick v. Quigley, 41 C. C. even though this statement was A. 294, 101 Fed. 187. qualified by saying that they are not 21 — Massoth v. Delaware & H. bound by his views of the evidence; Canal Co., 64 N. Y. 524; Johnston v. overruling Eutland Mfg. Co. v. Quin- Com., 85 Pa. St. 54; Sailor v. Hert- Ian, 1 Wkly. Notes Cas. (Pa.) 456. zogg, 10 Pa. St. 296; Pennell v. Daw- An instruction by the court "that, son, 18 C. B. (Eng.) 355. in his opinion, it was the duty of the In charging the jury in a homi- jury to convict the defendant," is cide case the judge may express misleading, and ground for a new his opinion on the weight and effect trial. Breese v. United States, 48 of the evidence and he may say to C. C. A. 36, 108 Fed. 804, rev'g 106 the jury that there is no evidence Fed. 680. Compare Johnston v. Com., in the case to reduce the crime to 85 Pa. St. 60. manslaughter, but he may not ex- 22 — New York Firemen Ins. Co. v. press such an opinion when it is not Walden, 12 Johns. (N. Y.) 513, 7 Am. warranted by the evidence or would Dec. 340; People v. Quin, 1 Parker amount to binding instructions. Cr. Cas. (N. Y.) 340. Commonwealth v. Marcinko, 242 Pa. 23 — Sawyer v. Phaley, 33 Vt. 69. 388. 24— Hurlburt v. Hurlburt, 128 N. Compare Burke v. Maxwell's Y. 420, 26 Am. St. Rep. 482; Follmer Adm'rs, 81 Pa. St. 139, where it was v. McGinley, 146 Pa. St. 517. held error for the judge to tell .the 25 — State v. Overton, 85 N. J. L. jury that, if he were in the jury box, 287. he would find against the plaintiff, 316 Instructions to Juries. [§131 tice is discretionary, 26 and the court is under no obligation to comment on the evidence, and express an opinion on the weight and effect thereof, even on request. 27 § 132. Same — Necessity of instructing that opinion is merely advisory. It is the province of the jury to determine the existence or nonexistence of facts, while on the other hand the deci- sion of all questions of law is a matter exclusively for the court. 28 Accordingly, every charge should distinguish clearly between the law and the fact so that the jury cannot misun- derstand their rights or their duty, nor mistake the opinion of the judge upon matters of fact for his direction in point of law. It is of vital importance that this distinction be kept steadily in view. 29 26 — Whether the court shall ex- press an opinion to the jury on the weight of the evidence is always a matter of discretion, and the court may exercise it or not, according as it deems best. Dick v. Colonial Trust Co., 88 Conn. 93; Brueh v. Carter, 32 N. J. L. 565; Stevens v. Talcott, 11 Vt. 25; Breese v. United States, 45 C. C. A. 535, 106 Fed. 680. 27 — Connecticut. Cohen v. Pem- berton, 53 Conn. 235. Indiana. Shank v. State, 25 Ind. 208. Maine. George v. Stubbs, 26 Me. 243. x New Jersey. Bruch v. Carter, 32 N. J. L. 565. New York. Moore v. Meacham, 10 N. Y. 207; Burling v. Gunther, 12 Daly 6; Bryce v. Meyer, Daily Reg., Sept. 18, 1883. Pennsylvania. Philadelphia & T. R. Co. v. Hagan, 47 Pa. St. 244, 86 Am. Dec. 541; Lorain v. Hall, 33 Pa. St. 270; Thomas v. Thomas, 21 Pa. St. 315; Haldeman v. Martin, 10 Pa. St. 369; Clark v. Partridge, 2 Pa. St. 13; Linderman v. Sheldon, 7 Phila. 168. Vermont. Doon v. Ravey, 49 Vt. 293; Stevens v. Talcott, 11 Vt. 25; Vincent v, Stinehour, 7 Vt. 62; Brainard v. Burton, 5 Vt. 97. United States. Burdell v. Denig, 92 U. S. (2 Otto.) 716, 23 L. Ed. 764; Marine Ins. Co. of Alexandria v. Young, 5 Cranch 187, 3 L. Ed. 74; Smith v. Carrington, 4 Cranch 62, 2 L. Ed. 550; Crane v. Morris, 6 Pet. 598, 8 L. Ed. 514; Van Ness v. Pacard, 2 Pet. 137, 7 L. Ed. 374; United States v. Burnham, 1 Mason 57, Fed. Cas. No. 14,690; Consequa v. Willings, Pet. C. C. 225, Fed. Cas. No. 3,128; Brickill v. City of Bal- timore, 8 C. C. A. 500, 60 Fed. 98. 28— See ch. VII, ante. 29 — New York Firemen Ins. Co. v. Walden, 12 Johns. (N. Y.) 513, 7 Am. Dec. 340. § 132] Charging on Facts or Weight of Evidence. 317 If the court states his opinion to the jury on the facts, it should be stated as an opinion merely, and not as a posi- tive direction, and it should be impressed upon the jury that they are to decide the facts upon their own views of the evidence, and that the judge only interposes his opinion in order to aid them in cases of difficulty, or to inspire them with confidence in cases of doubt. 30 Thus, it is customary, 31 and undoubtedly the better practice, to tell the jury ex- pressly that they are to decide all questions of fact on their own responsibility, and that they are not bound by the opinion of the court, which is advisory only; and causes have been reversed for failure to direct the jury that they are not bound by the opinion of the court on questions of fact. 32 However, if the language of the charge is- such that 30— New York Firemen Ins. Co. v. Walden, 12 Johns. (N. Y.) 519. ' ' The line which separates the two provinces must not be overlooked by the court. Care must be taken that the jury is not misled into the be- lief that they are alike bound by the views expressed upon the evidence and the instructions given as to the law. They must distinctly under- stand that what is said as to the facts is only advisory, and in no- wise intended to fetter the exercise finally of their own independent judgment. Within these limitations, it is the right and duty of the court to aid them by recalling the testi- mony to their recollection, by col- lating its details, by . suggesting grounds of preference where there is contradiction, by directing their at- tention to the most important facts, by eliminating the true points of inquiry, by resolving the evidence, however complicated, into its sim- plest elements, and by showing the bearing of its several parts, and their combined effect, stripped of every consideration which might otherwise mislead or confuse them. * * * Constituted as juries are, it is frequently impossible for them to discharge their function wisely and well without this aid." Nudd v. Burrows, 91 U. S. (1 Otto) 437, 23 L. Ed. 289. 31 — New York. Sindram v. Peo- ple, 88 N. Y. 203; Hoffman v. New York Cent. & H. R. E. Co., 46 N. Y. Super., Ct. 526. Pennsylvania. Bonner v. Herrick, 99 Pa. St. 225. Vermont. Sawyer v. Phaley, 33 Vt. 69; Yale v. Seely, 15 Vt. 221. United States. Haines v. Mc- Laughlin, 135 U. S. 584; 34 L. Ed. 290; Eucker v. Wheeler, 127 U. S. 85, 32 L. Ed. 102; Garrard v. Rey- nolds' Lessee, 4 How. 123, 11 L. Ed. 903; Illinois Cent. E. Co. v. David- son, 22 C. C. A. 306, 76 Fed. 517; Sorenson v. Northern Pac. E. Co., 36 Fed. 166. 32— Anderson v. Avis, 10 C. C. A. 318 Instructions to Jueies. [§ 132 the jury cannot reasonably infer that the statements in the charge in reference to matters of fact are more than a mere opinion of the judge, to be adopted and applied according as it agrees with the jury's own views, a failure to tell the jury that they are not bound by the court's opinion is not assignable as error, 33 and in one case it was held that the court might .state its opinion on a fact without telling the jury they were not bound thereby, and that, if a party feared that it might have undue influence on the jury, he should request a charge that the jury are exclusive judges of such facts. 34 § 133. Same — Effect of erroneous opinion. The fact that the opinion expressed by the court is errone- ous is not ground for reversal, if the instruction is such that the jury clearly understand that they are to use their own judgment in determining the facts, and that the court 's opinion does not bind them. 35 Thus, in an action where a plaintiff claimed a certain sum of money was personally loaned to the defendant and there was a dispute as to the entries in a book of account, an instruction containing the words "How such an error could be made it is difficult to conceive, ' ' was held not erroneous even though it was easy to conceive how the error was made, the issues being fairly left to the jury. 36 Even if entire accuracy in the statement of facts may not be obtained, yet if the case is left fully and clearly to the 347, 62 Fed. 227. .Where the court 34 — Ames v. Cannon River Mfg. indicates to the jury his view of the Co., 27 Minn. 245. facts, he should also charge the jury 35 — Knapp v. Griffin, 140 Pa. St. that they are the exclusive judges 604; Oyster v. Longnecker, , 16 Pa. of the facts, and are not bound by St. 269; Long v. Ramsay, 1 Serg. & the court's views. Vanarsdale v. R. (Pa.) 72; Cf. Clapp v. Bromag- Hax, 47 C. C. A. 31, 107 Fed. 878. ham, 9 Cow. (N. Y.) 530. 33 — First Baptist Church v. Bouse, 36 — Larson v. Barlow, 112 Minn. 21 Conn. 166; Hunt v. Bennett, "4 E. 246. D. Smith (N. Y.) 647; Ketchum v. Ebert, 33 Wis. 611; Hansen v. Boyd, 161 U. S. 404, 40 L: Ed. 749. § 134] Charging on Facts or Weight op Evidence. 319 jury, under instructions not calculated to mislead, there is no available error. 37 § 134. Same — When expression- of opinion is ground for re- versal. As has been noted in previous sections, 38 an expression of opinion amounting to a binding charge is error warranting reversal, 39 and the cause will also be reversed where the court's remarks are such as are likely to mislead. 40 Thus, when the effect of an instruction is to take from the jury all testimony except that of a particular witness, and to leave to the jury the construction of a paper properly for the court, the error is not cured by telling the jury that the whole testimony is for it to pass upon. 41 37 — Leibig v. Steiner, 94 Pa. St. 40 — Burke v. Maxwell's Adm'rs, 472; Bitner v. Bitner, 65 Pa. St. 347; 81 Pa. 139; Connelly v. Walker, 45 Bepsher v. Wattson, 17 Pa. St. 365. Pa. 449. Generally, as to misleading 38— See §§ 132, 133, ante. instructions, see §§ 164-169, post. 39 — Burdick v. People, 58 Barb. 41 — Heydrick v. Hutchinson, 165' (N. Y.) 51; Moran v. McClearns, 4" Pa. St. 208. Lans. (N. Y.) 288; Sehanek v. Mor- ris, 2 Sweeny (N. Y.) 464; Sailor v. Hertzogg, 10 Pa. 296. CHAPTER XIII. Summing up the Evidence. § 135. Introduction — Definition and distinctions. § 136. Jurisdictions where practice is permissible or prohibited. § 137. Same — Effect of constitutional or statutory provisions as to charg- ing on facts, , § 138. Necessity of summing up evidence. § 139. Method of summing up — Necessity of stating all the evidence. § 140. Same — Necessity of using precise language of witness. § 141. Same — Necessity of giving evidence in order in which it was ad- mitted. § 142. Same — Absence of evidence. § 143. Same — Issues and theories. § 144. Same — Repetition of testimony — Bequests of jury. § 145. Effect of misstating evidence. § 146. Instructions violating statutes <)r constitutional provisions prohibit- ing summing up of evidence. § 135. Introduction — Definition and distinctions. It has been noted in the previous chapter that at com- mon law, and in some jurisdictions, it is proper and usual for the trial judge in charging the jury to comment on the evidence and state what it does or does not tend to prove, or to express his opinion as to the weight of the evidence. 1 It was also the unquestionable right of the trial judge, at common law, to sum up or recapitulate the evidence ad- duced in the trial of the cause before him, and this practice still prevails in a number of states, 2 and in some jurisdic- tions where the court is forbidden by statutes or constitu- tional provisions from expressing any opinion as to the credibility of witnesses and as to the weight and effect of evidence. 1— See ch. XII, §§ 129-134, ante. 2— See § 136, post. ( 320 ) § 135] Summing ,up the Evidence. 321 In this connection it may not be improper to call atten- tion to the fact that the term ' ' summing up the evidence ' ' is often inaccurately used both by bench and bar, as inclusive both of a statement and recapitulation of the evidence, and of an expression of opinion as to the weight of evidence and as to the credibility of witnesses. The use of such ex- pression is very misleading. In Blackstone 7 s Commentaries the practice of summing up the evidence is described as fol- lows: "When the evidence is gone through on, both sides, the judge, in the presence of the parties, the counsel, and all others, sums up the whole to the jury; omitting all super- fluous circumstances, observing wherein the main question and principle issue lies, stating what evidence has been given to support it, with such remarks as he thinks neces- sary for their direction, and giving them his opinion in mat- ters of law arising upon that evidence. ' ' 3 It is the belief of the writer that the term ' ' summing up the evidence" should be carefully limited to the function ascribed to it by Blackstone, and in this work, the term is so used. The reasons in support of the practice of summing up the evidence are well stated in one of Our decisions in the fol- lowing words: "The great reliance, indeed, for truth in the verdict of a jury, is on the intelligence, integrity, and independence of the jurors; but while they are deemed Competent to that end, experience and the knowledge of mankind produce the conviction that, unused as they afe to judicial inquiries, often depending upon artificial rea- soning, they are more competent when aided by the more extensive knowledge and more perfect experience of a judge, versed in human affairs, accustomed to consider, discuss, and digest masses of complicated evidence, to separate the material from the immaterial parts, and to combine the former so as to display the full force of each and all its parts. " 4 3—3 Bl. Comm. 375. 4— State v. Lipsey, 14 N. 0. 485. Blashfield Vol. 1—21 322 Instructions to Juries. [§136 § 136. Jurisdictions where practice is permissible or prohibited. The practice of summing up and recapitulating the evi- dence exists in the United States both in jurisdictions where the court may express his opinion as to the weight of evi- dence, 5 and also in jurisdictions where such practice is pro- hibited by statutory or constitutional provisions. 6 In general, the rights of the court in this regard are con- sidered original and inherent, and they cannot be taken away except by constitutional or statutory provisions, 7 although there are decisions in one state against such doc- trine. 8 In some states the statutes prohibit the practice of sum- ming up the evidence. 9 5 — Connecticut. First Bapt. Church in Stamford v. Bouse, 21 Conn. 167. Minnesota. State v. Minneapolis Milk Co., 124 Minn. 34, 51 L. B. A. (N. S.) 244n. State v. Bose, 47 Minn. 47. New Jersey. Donnelly v. State, 26 N. J. L. 480. New York. People v. Fanning, 131 N. Y. 663; People v. Fanshawe, 65 Hun 77. Ohio. Morgan v. State, 48 Ohio St. 371. Pennsylvania. Com. v. McManus, 143 Pa. 64, 14 L. B. A. 89. Wisconsin. Hannon v. State, 70 Wis. 448. United States. District of Colum- bia v. Robinson, 180 U. S. 92, 45 L. Ed. 440, aff'g 14 App. Cas. (D. C.) 512; Starr v. United States, 153 U. S. 614, 38 L. Ed. 841; Mitchell v. Harmony, 13 How. 129, 14 L. Ed. 82; Games v. Stiles, 14 Pet. 322, 10 L. Ed. 476; Tracy v. Swart- wout, 10 Pet. 80, 9 L. Ed. 354; M'Lanahan v. Universal Ins. Co., 1 Pet. 170, 7 L. Ed. 98. 6— See § 137, post. 7— State v. Lipsey, 14 N. C. 485. 8 — In Indiana, the earlier decisions affirm the judge's right to sum up the evidence. Barker v. State, 48 Ind. 163; Driskill v. State, 7 Ind. 338. In later decisions the practice is held erroneous. Cunningham v. State ex rel. Zartman, 65 Ind. 377; Killian v. Eigenmann, 57 Ind. 480. But see Pittsburgh, C. & St. L. By. Co. v. Sponier, 85 Ind. 165, contain- ing dictum that the court may sum up the evidence. None of these decisions seems to be based on any statutory authority, but inasmuch as there is. a conflict of authority in this state, the de- cisions are of small value. — Ed. 9 — Code Crim. Proe. Tex., art. 715, prohibits the court from summing up the evidence in criminal cases, and this prohibition is rigidly enforced by the courts. Hannah v. State, 1 Tex. App. 579; Porter v. State, 1 Tex. App. 396; Gibbs v. State, 1 Tex. App. 13. Ann. Code Miss. 1892, § 732, pro- vides that ' ' the judge * * * shall §137] Summing up the Evidence. 323 § 137. Same — Effect of constitutional or statutory provi- sions as to charging on facts. The practice of summing up the evidence exists in a num- ber of states where statutory or constitutional provisions prohibit the court from charging juries with respect to matters of fact or commenting on the evidence, 10 and it has been held that such provisions do not affect the right Of the trial judge to sum up the evidence. 11 In some states, the statutes or constitutional provisions expressly authorize the practice, as where such provisions contain language that the trial judge "may state the testi- mony and declare the law," 12 or "may state the evidence not sum up or comment on the tes- timony." Southern E. Co. v. Kend- rick, 40 Miss. 374, 90 Am. Dec. 332. In Louisiana it was formerly prop- er for the court to sum up the evi- dence. State v. Green, 7 La. Ann. 518; State v. Chandler, 5 La. Ann. 489, 52 Am. Dec. 599, but as regards criminal cases, the rule was changed by a statute, passed in 1853, which provided, among other things, that the court "shall abstain from stat- ing or recapitulating the evidence so as to influence their [the jury's] de- cision on the facts. He shall not state or repeat to the jury the testi- mony of any witness, nor shall he give any opinion as to what facts have been proved or disproved. ' ' State v. Asberry, 37 La. Ann. 125. In Michigan, under a statute re- quiring the court to instruct only as to the law of the case, it is error to state and review the evidence. Comp. Laws Mich., § 10243, How. Ann. St., § 11847, Judicature Ac); of 1915, ch. 18, § 58; Benaud v. City of Bay City, 124 Mich. 29, holding, in an action against the city for injuries from a defective sidewalk, that an instruction that "in this case there are some funny things. * * * city officers * * * swear that the walk was perfectly safe, and go right along and repair it, * * * and almost immediately rebuild it," was erroneous. But compare People v. Carey, 125 Mich. 535. In Oregon, Hill's Ann. Laws Ore., § 200 prohibits the trial court from presenting the facts of a case to the jury. Smitson v. Southern Pac. Co., 37 Ore. 74, 60 Pac. 907. 10 — Colorado. Rose v. Otis, 5 Colo. App. 472, 39 Pac. 77. Georgia. City & Suburban By. Co. v. Findley, 76 Ga. 311; Whitlow v. State, 74 Ga. 819; Bray v. State, 69 Ga. 765; Wright v. Central Bailroad & Banking Co., 16 Ga. 46. Kansas. Bellew v. Ahrburg, 23 Kan. 287. Maine. Hamlin v. Treat, 87 Me. 310. 11— Shiels v. Stark, 14 Ga. 429. 12 — California. Morris v. Lach- man, 68 Cal. 109, 8 Pac. 799; People v. Doyell, 48 Cal. 85; Miller v. Stew- art, 24 Cal. 502. Massachusetts. Com. v. Barry, 9 Allen 278. 324 Instructions to Juries. [§ 137 when the same is disputed," 13 and it has been; held that such provisions are not repugnant to other provisions pro • hibiting the court from charging on the weight of : the evidence. 14 Where the same statute or constitution contains both pro- visions, it is held that, while the court cannot state his opinion as to the weight of the evidence, his right to sum up the evidence after the manner of the common-law prac- tice' remains unaffected, and that ; the provision permitting him to sum up is merely declaratory and in affirmation of his common-law right. 15 , ... Under constitutional provisions declaring that "judges shall not charge juries with regard to matters of fact, but Nevada. State v. Smith, 10 Nev. 106; State v. Duffy, 6 Nev. 138. North Carolina. State v. Boyle, 104 N. C. 819; State v. Noblett, 47 N. C. 418; Bailey v. Poole, 35 N. C. 404; State v. Lipsey, 14 N. C. 485. Tennessee. Ayres v. Moulton, 5 Cold. 154; Case v. Williams, 2 Cold. 239; Lannum v. Brooks' Lessee, 4 Hayw. 121; Hughes v. State, 8 Humph. 75; Ivey v. Hodges, 4 Humph. 154; Atchison, v. State, 13 Lea 279. In South Carolina, the constitu- tional provision that the judge ' ' may state the testimony and declare the law" authorized the practice of summing up the evidence. Davis, v. Elmore, 40 S. C. 533; Moore v. Colum- bia & G. B. Co., 38 S. C. 1; Massey v. Wallace, 32 S. C. 149; Richards v. Munro, 30 S. C. 284; Walker v. Laney, 27 S. C. 150; State v. Moor- man, 27 S. C. 22; Woody v. Dean, ,24 S. C. 505; Benedict v. Bose, 16 S. C. 630; State v. Green, 5 Rich. 65. This provision was amended in 1895 and the practice is now pro- hibited in that state. See this sec- tion, post. 13— Code Ala. 1886, § 2754 (now Code Ala. 1907, §5362), has been held not in limitation or restraint of the court's original and inherent power to state the admitted facts to the jury. Tidwell v. State, 70 Ala. 33. Under Code of 1896, § 2326 (now Code Ala. 1907, §5362), the court may state what the evidence 1 of a particular witness was when the same is in dispute. Folmar v. Silery 132 Ala. 297. 14— People v. Dick, 34 Cal. 663; Com. v. Barry, 9 Allen (Mass.) 278. 15 — Com. v. Barry, 9 Allen (Mass.) 278; State v. Lipsey, 14 N. C. 485. "By providing that the court may also state the testimony, the mani- fest purpose of the legislature was to recognize and affirm the power and authority of the court, to be exercised according to its discretion, to sum up the evidence, to state its legal effect and bearing, on the is- sues, and to indicate its proper ap- plication under the rules of law." Com. v. Barry, 9 Allen (Mass.) 278. §138] Summing up the Evidence. 325 shall declare the law," it is improper to sum up or reca- pitulate the evidence. 16 § 138. Necessity of summing up evidence. The power of the trial judge to sum up or recapitulate the evidence, at eommon law, was discretionary. He might sum up the evidence if he saw fit to do so, or refuse to sum up if this course seemed best to him. There was no rule making it imperative on the judge to repeat the evidence. 17 16 — Arkansas Const., art. 7, § 23, declaring that "judges shall not charge juries with regard to matters of fact, but shall declare the law," in effect prohibits the trial judge from summing up as at common law. Fitzpatrick v. State, 37 Ark. 238. t Under Const. S. C. 1895, art. 5, § 26, as amended, declaring that, "judges shall not charge juries in respect to matters of fact, but shall declare the law," the courts have held that the framers of the new constitution intended to abrogate the practice of summing up the evidence, and that it is no longer permissible. Burnett v. Crawford, 50 S. C. 161; State v. Stello, 49 S. C. 488; Norris v. Clinkscales, 47 S. C. 488. In construing this provision for the -first time, the reviewing court said: "The prohibition, 'judges shall not charge juries in respect to mat- ters of fact,' now stands alone in section 26, unqualified by the per- mission to 'state the testimony,' which permission has been stricken out by amendment; and any direct reference to the testimony in charg- ing a jury, any expression as to what is in evidence, any remark that would amount to a stating of the testimony, in whole or in part, is absolutely prohibited." But as it would be impossible to declare' the law applicable to a case on trial without connecting the legal prin- ciples involved with some state of facts, actual or hypothetical, ' ' it was the intention of the framers of the new constitution, in amending" the provision, "that the trial judge, in charging the law of the ease, should lay before the jury that law as ap- plicable to a supposed state of facts, but that in so doing he should care- fully avoid repeating the evidence on the facts at issue, making no statement of the testimony, either in whole or in part." Norris v. Clink- scales, 47 S. C. 488. 17 — ' ' It cannot be traced or ascer- tained * * * that any rule of the common law exists that makes it imperative on a judge to repeat the evidence to the jury. * * * If, on the trial of a cause, the wit- nesses are numerous, the evidence complicated, and the main question or principal issue obscured by var- ious and conflicting testimony, he may, in his discretion, sum up the whole to the jury, that they may apply it properly, and have their at- tention directed to the essential points in controversy. No judge would ever refuse to impart such as- sistance when it was requested by a jury, nor would he withhold it in any case wherein the nature of the 326 Instructions to Juries. [§138 This rale obtains in states where the practice of sum- ming up the evidence is permissible, and the judge is not bound to recapitulate the evidence with or without request, unless statutory or constitutional provisions impose such" duty. 18 In one jurisdiction, the decisions construing a statute providing that the court "shall state, in a plain and correct manner, the evidence given in the case, and declare and explain the law arising thereon," are not altogether harmo- nious, 19 but in such state it has been held that a failure of the judge to recite the testimony in his charge to the jury is not assignable as error, where it was expressly agreed by counsel on both sides that it need not be recapitulated. 20 evidence or the conduct of the cause led him to believe that his aid would enable them to discharge their constitutional functions with more correctness or facility; but it must, of necessity, depend on the circum- stances of each case, whether the judge believes that his aid would be of any efficacy, — whether the case be not so plain and intelligible as to render his interference unnecessary, or the evidence so equally balanced as to make it unsafe. All these con- siderations the law has wisely con- fided to the sound discretion of the judge." State v. Morris, 10 N. 0. 390. 18 — Georgia. Wright v. Central Railroad & Banking Co., 16 Ga. 46. Minnesota. Lowe v. Minneapolis St. Ry. Co., 37 Minn. 283. Ohio. Morgan v. State, 48 Ohio St. 371. Tennessee. Lannum v. Brooks' Lessee, 4 Hayw. 121; Ivey v. Hodges, 4 Humph. 154. 19— Under Code N. C, § 413 (now Pell's Rev. of 1908, §535), it has been held that "no implication can arise from this law that he must charge the jury, but, if he does charge them, he must do it according to the rule there laid down," and a refusal of a request to sum up the evidence was sustained. State v. Morris, 10 N. C. 391. In another case, where a request had been made that the evidence be summed up, the judgment was re- versed because the court did not do so. It is somewhat difficult to ( de- termine from the language of the opinion whether the court consid- ered it erroneous not to sum up when requested, or whether it considered a failure to do so would have been erroneous, even though no request had been made. State v. Boyle, 104 N. C. 800. A subsequent decision (in which special stress was laid on the fact that, in the case just mentioned, a request had been made) holds that, in the absence of a request, the court need not eliminate the material facts on both sides, and apply the prin- ciples of law to them. State v. Brady, 107 N. C. 822. 20— Wiseman v. Penland, 79 N. C. 197. §139] Summing up the Evidence. 327 §139. Method of summing up— Necessity of stating all the evidence. When the court attempts to sum up the evidence he must do so accurately and impartially, 21 and not in a manner naturally to confuse the jury or to lead them to a particular result. 22 But the court is not bound to state all the evidence that has been brought out during the course of the trial, 23 or to notice every position discussed by counsel. 24 The power of< the judge in this regard is largely discre- tionary, 26 but it is ordinarily sufficient if the attention of the jury is called to the contentions of the parties and the prin- cipal evidence bearing upon these contentions; 26 and an instruction collating the facts and stating the rule of law applicable has been held proper. 27 21 — State v. Minneapolis Milk Co., 124 Minn. 34, 51 L. E. A. (N. S.) 244n; Com. v. Warner, 13 Pa. Super. Ct. 461. 22 — State v. Minneapolis Milk Co., 124 Minn. 34, 51 L. R. A. (N. S.) 244n. 23 — Iowa. Hubbard v. Montgom- ery County, 140 Iowa 520. New York. People v. McGonegal, 62 Hun 622. North Carolina. State v. Ussery, 118 N. C. 1177; Boon v. Murphy, 108 N. C. 187; State v. Haney, 19 N. C. 390; State v. Lipsey, 14 N. C. 485; State v. Morris,. 10 N. C. 388. Pennsylvania. Borham v. Davis, 146 Pa. St. 72;, Com. v. Warner, 13 Pa. Super. Ct. 461. South Carolina. Kaminitsky v. Northeastern B. Co., 25 S. C. 53. United States. Allis v. United States, 155 U. S. 123, 39 L. Ed. 94. The court is not bound to refer every item of evidence which the jury might properly consider in reaching the conclusion as to a plaintiff 's contributory negligence. Hubbard v. Montgomery County, 140 Iowa 520. There is no known ' ' rule that com- pels a court to recapitulate all the items of the evidence, nor even all bearing upon a single question." Allis v. United States, 155 U. S. 123, 39 L. Ed. 94. 24— Simpson v. Blount, 14 N. C. 34. 25 — The minuteness with which a trial judge, in his charge to the jury, shall state the evidence, is to a large extent discretionary with him. State v. Morris, 10 N. C. 388; Fowler v. Smith, 153 Pa. St. 639; Borham v. Davis, 146 Pa. St. 72. 26 — The act of the judge in calling the attention of the jury to the con- tention of the parties and the prin- cipal evidence bearing upon these contentions is proper; the judge need not undertake to recapitulate all the evidence. Bank v. Sumner, 119 N. C. 591. 27 — Medearis v. Anchor Mut. Fire Ins. Co., 104 Iowa 88, 65 Am. St. 428. The court's duty is properly per- 328 Instructions to Juries. [§139 Reference to the minor details of the testimony should be omitted, 28 but if the judge recapitulates the evidence on one side, it is his duty to also recapitulate it on the other side and not indicate by the matter or manner of the charge what his own views are as to the effect of the testimony. 29 formed when he directs the jury's attention to the principal questions they are called upon to try, and ex- plains the law applicable thereto. Boon v. Murphy, 108 N. C. 187; State v. Haney, 19 N. C. 390. It is the duty of a judge, when he sums up, to collate the evidence and bring it together in one view on each side, with such remarks and illus- trations as may properly direct the attention of the jury to the merits of the case. It is also his duty to bring to the notice of the jury prin- ciples of law or facts which have an important bearing on the case. Bai- ley v. Poole, 35 N. C. 404. 28 — A trial judge should refer to the evidence only so far as is neces- sary to present the leading issues and should omit reference to the minor details of the testimony. Parkas v. Brown, 4 Ga. App. 130. It is undoubtedly the better prac- tice, in recapitulating the evidence, to divest it of all immaterial cir- cumstances. State v. Moses, 13 N". C. 452. "The real point of controversy often and generally depends on a very small portion of the testimony introduced. In the course of a trial, points made upon prolix and com- plicated documents, or after the most wearisome examination of witnesses, are abandoned, sometimes expressly, but oftener tacitly, because not suf- ficiently raised by the proof ad- duced, or answered by fuller proof on the other side. * * * To ad- "vert to everything that has thus oc- curred during the trial, though not pressed by the party, though yielded by him, immaterial or absurd, would be a harmful consumption of time, obscure the truth, and confound the minds of the jurors." State v. Lip- sey, 14 N. C. 485. 29 — Lamar v. King, 168 Ala.' 285. The judge must present the facts on both sides in such a manner that they will have their fullest legiti- mate operation. State v. Moses, 13 N. G. 452. If the charge is such a plain de- parture from impartiality in collat- ing the evidence as of itself to con- vey to the jury an impression of the judge's opinion, the reviewing court will set aside the verdict. State v. Lipsey, 14. N. C. 485. It is not just to present the proof prominently on one side and omit the countervailing evidence on the other side entirely. Wright v. Central Bailroad & Banking Co., 16 Ga. 46. See also, L. I. Aaron Co. v. Hirsch- feld, 89 111. App. 205. If a judge, in his -charge, presents only the inferences that can be drawn on one side, arrayed in solido, so as to constitute an imposing ar- gument to the jury without sum- ming up on the other side, the judg- ment should be reversed. State v. Moses, 13 N. C. 452. It has, however, been held not a ground for reversal that the judge stated the facts on one side with more fullness, clearness, and em- phasis than he did on the other. Mc- Pherson v. McPherson, 21 S. C. 273. § 141] Summing up" the Evidence. 329 Strong points on either side should not be omitted or slurred over. 30 In the case ■ of an omission of matter deemed material, counsel should call the court's attention to it and pray an instruction. 31 § 140. Same — Necessity of using precise language of wit- ness. Ordinarily a statement of the substance of a witness ' tes- timony is sufficient. 32 In one state, however, it has been held safer to recite the witness 7 exact language, 33 but in this jurisdiction it was held not erroneous for the judge, in stating the testimony, to read another person's memorandum, instead of stating the testimony from his own recollection, or reading it from a memorandum made by himself. 34 It has been held that, where a trial has lasted for several days, a refusal to state the evidence on a certain point, the court having offered to read parts of the testimony, was not erroneous, since the court could not be expected to remember all the testimony. 35 § 141. Same — Necessity of giving evidence in order in which it was admitted. It is not necessary for the court to read or recite the evidence in the order in which it was given, but the ques- tions of fact which arise may be pointed out and the atten- * 30— Borham v. Davis, 146 Pa. 72. Pa. St. 358; Strawn v. Shank, 110 31— Simpson v. Blount, 14 N. C. Pa. St. 259. 34. 33 — If the court undertakes, in a An omission to state evidence criminal case, to give a part of the favorable to a party is not assign- testimony, it is safer to recite the able as error unless pointed out at witness' language as taken down by the time. Bank v. Sumner, 119 N. the shorthand reporter, or in the C. 591. judge's notes. People v. Doyell, 48 32 — It is not necessary to give the Cal. 85. exact language of a witness. People 34 — People v. Boggs, 20 Cal. 432. v. Doyell, 48 Cal. 85; State v. Moses, 35— Myer v. Brooklyn City E. Co., 13 N. C. 452; Krepps v. Carlisle, 157 10 Misc. Rep. (N. Y.) 11. 330 Instructions tq Juries. [§ 141 tion of the jury called to the evidence applicable to such questions. 36 The words of each witness need not be stated separately. The witnesses may be grouped, and the substance of the tes- timony of a group of witnesses given, if it is fairly done. 37 In addition to stating the testimony of a witness, the court may state all the circumstances attendant upon the examination to show how they are contradictory, and how reconcilable, and then to submit a reasonable inference which may be drawn. 38 However, it is not improper to read or recite the evidence in the order in which it was given. 39 § 142. Same — Absence of evidence. The power of the court to sum up or recapitulate the evi- dence includes the right to state that there is no' evidence as to a particular fact, when such is the case. 40 Thus, in an action for wrongful death, on the issue of contributory negligence, it has been held not improper to state that no living witness could be produced on such issue. 41 36 — State v. Summers, 19 S. C. 94. 37 — Maynard v. Tyler, 168 Mass. The judge may place the evidence 107. before the jury in the order in which 38 — State v. Moses, 13 N. C. 452. it relates to the propositions which The judge may make suggestions, it is adduced to support or contra- fairly warranted by the evidence, to diet. State v. Boyle, 104 N. C. 800; show the jury how it might be recon- State v. Jones, 97 N. C. 469; State v. ciled in some parts, and the difficulty ■ James, 31 S. C. 235; State v. White, of doing so in others. Com. v. Mc- 15 S. C. 392. Manus, 143 Pa. St. 64, 14 L. B. A. 89. The court may eliminate the con- 39 — State v. Addy, 28 S. C. 13. troverted facts, arrange the testi- 40 — People v. Dick, 34 Cal. 663. mony in its bearing on their differ- 41 — A statement that "what was ent aspects, and instruct the jury as tlje occasion for stopping at this to the law applicable thereto, in such point neither of the unfortunate vic- manner as will enable them to see tims is here to explain to us, and and comprehend the matters which there is no evidence, probably, that are essential to an intelligent and can ever be obtained to explain it," impartial verdict. State v. Boyle, has been held to mean that no living 104 N, C. 800. witness could probably be produced §143] Summing up t&e Evidence. 331 § 143. Same — Issues and theories. The right to sum up the evidence includes the right to state that there is some evidence in support of a particular issue, 42 and>the court may properly state the theories which the evidence claims to prove, or the claims of the parties regarding the evidence. 43 In fact, it is regarded as the duty of the court to state the claims of both parties upon all questions of fact that arise in a case, in order that the jury may clearly under- stand them, 44 and that the court may explain properly the law applicable to the case. 4S Each litigant has a right to have his theory of the case presented to the jury, 46 and the instructions must submit oii the point at issue, and the instruc- tion could not be understood as meaning that there was no circum- stantial evidence in the case on this point. Sutton v. Town of Vernon, 62 Conn, 1. 42 — Harington v. Neely, 7 Baxt. (Tenn.) 442. 43 — Hawes v. State, 88 Ala. 37; State v. Smith, 49 Conn. 388. Where the court charges that there is evidence on behalf of the plaintiff of a fact alleged by the plaintiff, and the court also- charges that there is evidence on the part of the defend- ant to the contrary, the court is merely attempting to call the atten- tion of the jury to the theories of the respective parties, and there is no violation of the statute which for- bids the court from presenting the facts of the case to the jury. Smit- son v. Southern Pac. Co., 37 Ore. 74, 60 Pac. 907. 44 — Dexter v. McCready, 54 Conn. 174; Minims v. State, 16 Ohio St. 221. It is the duty of the judge to give the law applicable to all theories presented by the testimony. Lamar v. King, 168 Ala. 285. A judge should give instructions applying the law. to any theory of prosecution or defense that is in the case, which is all that should be asked in a case of disputed facts. Wendt v. Village of Richmond, 164 Mich. 173. In an action for injuries sustained while attempting to alight from a street car it would have been error not to present defendant's sida of the case. Pack v. Camden Interstate E. Co., 154' Ky. 535. Where the court has stated hypo- thetically the alleged facts consti- tuting the theory of one of the par- ties, and given the law applicable to that theory, it is the duty of the court, if the evidence so authorizes, to state the alleged facts constitut- ing the theory of the other party, and state the law applicable thereto, but this duty does not devolve on the court if the latter party's theory is unsupported by any evidence. Banks v. State, 89 Ga. 75. 45— Mimms v. State, 16 Ohio St. 221. 46— West v. Shaw, 61 Wash. 227, 112 Pac. 243. 332 Instructions to Juries. [§ 143 every phase of the case made by the evidence, and every legitimate deduction to be drawn therefrom, 47 even though the court may not believe the evidence to be true. 48 § 144. Same — Repetition of testimony — Requests of jury. The court is not required to recapitulate the testimony adduced during the trial a second time, although one of the parties request that it be done, 49 but the right to state the evidence authorizes the trial judge to state the testimony of any witness at the request of the jury, 60 and it has been held that, after so doing, he may refuse to allow counsel to give his version of it after he had argued .the case. 51 § 145. Effect of misstating evidence. It is error warranting reversal to make an inaccurate statement of the evidence which has an important bearing on the jury's view of the case, 52 or to erroneously state tbe evidence upon a pivotal fact in the case, 53 even though such mistake is made inadvertently and the evidence has been correctly stated elsewhere in the charge, 54 provided, of course, that such charge has the effect of misleading the jury to the prejudice of one of the parties. 55 A defendant is entitled to have an 51 — Atchison v. State, 13 Lea instruction as to the legal effect of (Tenn.) 279. the facts submitted to the jury, if 52 — American Oak Extract Co. v. found, when his evidence tends to Ryan, 104 Ala. 267;. Collins v. Lea- prove them. Allen v. Durham Trac- fey, 23 Wkly. Notes Cas. (Pa.) 264. tion Co., 144 N. C. 288. 53— Steinbrunner v. Pittsburgh & 47— Christian v. State, 71 Tex. Cr. w - %• c '°-, 14 6 Pa. St. 504, 28 Am. App. 566; Freeman v. State, 52 Tex. St -, Ee P- 806 - Cr Add 500 ' 54 — Steinbrunner v. Pittsburgh & \o rm. i 4. xi. * xi, ■ Jm „„ W. By. Co., 146 Pa. St. 504, 28 Am. 48 — The fact that the evidence J ' > ...... . St. Rep. 806. may be such that the court may be- r ,,•*•• t> i t> J - .„ , ' . 55 — California. People v. Boggs, lieve it untrue will not change this „ „ . 4 „ 2 rule. Freeman v. State, 52 Tex. Cr. Kansag> ' Bel]ew y Aiahm& 23 A PP- 50 °- Kan. 287. 49— Aston v. Craigmiles, 70 N. C. Michigan. People v. Caldwell, 107 316. Mich. 374. 50— People v. Ybarra, 17 Cal. 166; Pennsylvania. Knapp v. Griffin, State v. Smith. 10 Nev. 106; Atchi- 140 Pa. St. 604. son v. State, 13 Lea (Tenn.) 279. United States. Texas & P. Ey. Co. § 146] Summing up the Evidence. 333 According to some decisions, however, the court 's atten- tion should be called to the misstatement and a request made that it be corrected. 56 As illustrative of error in misstating the evidence, it may be stated that an instruction conveying the, impression that only one witness has testified to an alleged contract, is erroneous when as a matter of fact there were two, 57 and in an action for commissions, an instruction which did not correctly state the terms of the contract alleged and proved was erroneous, and such charge was not cured by a subse- quent instruction inconsistent therewith, 58 In an action of assumpsit for the price and value of coal claimed to have been sold to defendants, - an instruction referring to a conversation with one of the defendants, which the evidence showed did not occur until a later time was misleading and prejudicial. 59 § 146. Instructions violating statutes or constitutional pro- visions prohibiting summing up of evidence. Under a constitutional provision that the judges shall not charge juries with respect to matters of fact, but shall de- clare the law, it has been held not error to give an instruc- tion stating the facts in hypothetical form for the purpose v. Gentry, 163 U. S. 353, 41 L. Ed. Rep. 115; Braunsdorf v. Fellner, 76 186. Wis. 1. For a misstatement of the evi- It is necessary tQ suggest correc- denee to be a ground for reversal, it tion at once, and not silently reserve must be a misstatement of some sub- it for future exception, in order to stantial part of the testimony, and preserve for review error in a re- it must also be calculated to mislead capitulation of the evidence. Rumph the jury. Bellew v. Ahrburg, 23 v. Hiott, 35 S. C. 444; State v. Davis, Kan. 287. 27 S. C. 609; Muetze v. Tuteur, 77 56— New York. Arnstein v. Hau- Wis. 236, 9 L. R. A. 86, 20 Am. St. lenbeek, 16 Daly 382. Rep. 115. Pennsylvania. Knapp v. Griffin, 57 — Idaho Mercantile Co. v. Kalan- 140 Pa. St. 604. quin, 8 Idaho 101, 66 Pac. 933. South Carolina. Rumph v. Hiott, 58 — Cobb v. Dunlevie, 63 W. Va. 35'S. C. 444; State v. Davis, 27 S. C. 398. • 609. 59 — Cone v. American Electric Wisconsin. Muetze v, Tuteur, 77 Fuse Co., 145 Mich. 536. Wis. 236, 9 L. R. A. 86, 20 Am. St. 334 Instructions to Jtjbies. [§ 146 of declaring the law applicable to the case, the evidence not being recited? It has, however, been held improper to ask the jury whether a witness has testified to certain facts which have in fact been testified to, 61 or to give an instruction stating: "Does C. testify that his father never paid any rent on the land, and that he had it in exclusive possession? Does B. testify that Gr. used the land as his own, worked it, fenced it, ditched it, cleaned it, built barns and stables, and the other tenants out of possession allowed him to go on doing that for twenty years and upwards? They cannot now come into court and ask that he be disturbed." 62 Under a statute prohibiting summing up of the evidence an instruction that, if the jury believe the testimony of a designated witness (setting out what the testimony was), they might find for plaintiff, has been held erroneous for stating what that testimony was, that being a matter to be determined entirely by the jury. 63 60 — Jenkins v. Charleston St. By. 63 — Southern B. Co. v. Kendrick, Co., 58 S. C. 373. 40 Miss. 374, 90 Am. Dec. 332. 61— State v. Stello, 49 S. C. 488. 62— Burnett v. Crawford, 50 S. C. 168. CHAPTER XIV. Giving Undue Prominence to Evidence, Issues, and Theories. § 147. Giving undue prominence to certain evidence or facts. § 148. Same — Instructions held erroneous as singling out and giving undue prominence to the evidence. § 149. Same — Instructions held not' erroneous as singling out and giving undue prominence to the evidence. § 150. Singling' out particular witnesses. § 151. Same— Illustrations. § 152. Repetition. § 153. Same — Illustrations. § 154. Singling out issues and theories. §147. Giving undue prominence to certain evidence or facts. It is a well settled rule of practice that the court must not instruct specially upon particular portions of the evi- dence, thereby giving undue prominence to such evidence, 1 1 — Alabama. Southern R. Co. v. An instruction giving undue prom- Weatherlow, 164 Ala. 151; Hender- inence to particular facts or circum- son v. State, 11 Ala. App. 37. stances is improper. Floto v. Floto, Arkansas. Bush v. State, 37 Ark. 233 111. 605; Eckels v. Muttschall, 215. 230 111. 462, aff'g 131 111. App. California. People v. Sanders, 114 639;* Wickes v. Walden, 228 111. Cal. 216, 46 Pac. 153. 56;. Stern v. Bradner Smith & Georgia. Flowers v. Flowers, 89 Co., 225 111. 430, 116 Am. St. Rep. Ga. 632, 18 L. R. A. 75n. 151, aff'g 127 111. App. 640; Police- Illinois. Instructions should not men's Benev. Ass'n of Chicago v. single out and give undue promi- Ryce, 213 111. 9, 104 Am. St. Rep. nence to particular facts. Swigart 190, aff'g 115 111. App. 95; Ballah v. v. Savely, 176 111. App. 369; Pain- Peoria Life Ass'n, 159 111. App. 222; kinsky v. Illinois Cent. R. Co., 165 Harvey v. McQuirk, 158 111. App. 111. App. 556; Rosinski v.' Burton, 50; Dangerfield v. Hope, 157 111. App. 163 111. App. 162; Nave v. Gross, 63; Ventriss v. Pana Coal Co., 155 162 111. App. 83. 111. App. 152; Karkowski v. LaSalle (335) 336 Instructions to Juries. [§ 147 and requests for instructions which are open to this objec- County Carbon Coal Co., 154 111. App. 400, aff'd 248 111. 195; Sheridan v. Chicago & O. P. El. R. Co., 153 111. App. 70; Harding v. St. Lowis Nat. Stock Yards, 149 111. App. 370, aff'd 242 111. 444; Haywood v. Dering Coal Co., 145 111. App. 506. Indiana. Barker v. Stat?, 48 Ind. 163; McCorkle v. Simpson, 42 Ind. 453; Baxter v. Baxter, 46 Ind. App. 514. Iowa. Case v. Chicago G. W. E. Co., .147 Iowa 747. Kansas. Gross v. Shaffer, 29 Kan. 442. Kentucky. Moran v. Higgins, 19 Ky. L. Eep. 456. Michigan. Heddle v. City Elec. Ry. Co., 112 Mich. 547; Banner v. Schlessinger, 109 Mich. 262. Minnesota. Kincaid v. Jungkunz, 109 Minn. "400; Goodhue Farmers' Warehouse Co. v. Davis, 81 Minn. .210. Mississippi. Godwin v. State, 73 Miss. 873; Prine v. State, 73 Miss. 838. ■ -. Missouri. Meriwether v. Publish- ers, 224 Mo. 617;' Jackson v. Kansas City, Ft. S. & M. E. Co., 157 Mo. 621, 80 Am. St. Eep. 650; Meyer v. Pa- cific E. Co., 40 Mo. 151f Mead v. Brotherton, 30 Mo. 201; Lucks v. Northwestern Sav. Bank, 148 Mo. App. 376; Kirn V. E. E. Souther Iron Co., 146 Mo. App. 451; Pour- celly v. Lewis, 8 Mo. App. 593. Nebraska. Argabright v. State, 49 Neb. 760. North Carolina!. Wilson v. White, 80 N. G. 280. Ohio. Callahan v. State, 21 Ohio St.'30"6. ; ' : ' Oregon. Church v. Melville, 17 Ore. 413, 21 Pac. 387. Pennsylvania. Eeichenbach v. Euddach, 127 Pa. St. 564. South Carolina. Carr v. Mouzon, 86 S. C. 461; Montgomery v. Scott, 10 Eich. 449. .Texas. Goodbar v. City Nat. Bank of Sulphur Springs, 78 Tex. 461 ; Gal- veston, H. & S. A. Ey. Co. v. Kutac, 76 Tex. 473; Medlin v. Wilkins, 60 Tex. 409; Bell v. Hutchings (Tex. Civ. App.), 41 S. W. 200; Interna- tional & G. N. E. Co. v. Newman (Tex. Civ. App.), 40 S. W. 854; De Eossett v. State, — ■ Tex. Cr. App. — , 168 S. W. 531'; Cunningham v. State, — Tex. Cr. App. — , 166 S. W. 519; Hahn v. State, — Tex. Cr. App. — , 165 S. W. 218; Kauffman v. State, 53 Tex. Cr. App., 209; Parnell v. State, 51 Tex. Cr. App. 620. Vermont. Eeed v. Eeed, 56 Vt. 492. Virginia. Montgomery v. Com., 98 Va.,852; New York, P. & N. E. Co. v. Thomas, 92 Va. 606. Washington. Sexton v. School List. No. 34, Spokane Co., 9 Wash. 5, 36 Pac. 1052. United States. Coffin v. United States, 162 U. S. 664, 40 L. Ed. 1109. Compare Virgie v. Stetson, 73 Me. 452; State v. Smith, 65 Me.: 257; Millay v. Millay, 18 Me. 387. An instruction singling out and giving undue prominence to a fact is erroneous. Kirn v. E. E. Souther Iron Co., 146 Mo. App. 451. It is never permissible for a court to single out the evidence and charge upon the same. Parnell v. State, 51 Tex. Cr. App. 620. It does not devolve Upon the trial court to single out isolated parts' of the evidence and tell the jury, seriatim, that these several.l.points §147] Undue Prominence to Evidence ok Issues. 337 tion may be properly refused, 2 even though, such instruc- tions assert a correct principle of law. 3 The reason for this rule is that such instructions are both do not authorize a conviction. Kauff- man v. State, 53 Tex. Cr. App. 209. The court cannot pick out one item of evidence tending to establish any state of facts, when there are also others, and charge on that one item. De Eossett v. State, — Tex. Cr. App. — , 168 S. W. 531. 2 — Alabama. Bley v. Lewis, — Ala. — , 66 So. 454; Clayton -v. State, 185 Ala. 13; Birmingham Bailway, Light & Power Co. v. Adkins, 8 Ala. App. 555; Jefferson v. State, 8 Ala. App. 364; Brooks v. State, 8 Ala. App. 277; Wingate v. State, 1 Ala. App. 40. California. People v. Hawes, 98 Cal. 648, 33Pac. 791. Connecticut. Harris v. City of An- sonia, 73 Conn. 359. i Georgia. Model Mill Co. v, Mc- Ever, 95 Ga. 701. Illinois. Scott v. People, 141 111. 195; City of Aurora v. Hillman, 90 111. 61; Callaghan v. Myers, 89 111. 566; Grube v. Nichols, 36 111. 95; Donahue v. Egan, 85 111. App. 20. Indiana. Toledo, St. L. & K. C. E. Co. v. Mylott, 6 Ind. App. 438. Iowa. Merrill v. Hole, 85 Iowa 66; Kline v. Kansas City, St. J. & C. B. E. Co., 50 Iowa 656. Kansas. City of Atchison v. King, 9 Kan. 550; Anderson v. Canter, 10 Kan. App. 167, 63 Pac. 285. Massachusetts. Poole v. Boston & M. E. E., 216 Mass. 12. Michigan. Dawson v. Falls City Boat Club, 125 Mich. 433; People v. Pope, 108 Mich. 361; Busch v. Wil- cox, 82 Mich. 315. Missouri. State v. Eaftery, 252 Mo. 72; State v. Cantlin, 118 Mo. Blashfield Vol. 1—22 100; Chaney v. Phoenix Ins. Co., 62 Mo. App. 45. North Carolina. State v. Clara, 53 N. C. 25. Tennessee. Gulf Compress Co. v. Stuyvesant Ins. Co. of Pennsylvania, 129 Tenn. 586; Cooper v. State, 123 Tenn. 37. Texas. Sehunior v. Eussell, 83 ■ Tex. 83; Panhandle Nat. Bank v. Emery, 78 Tex. 498; Minter v. State, 70 Tex. Cr. App. 634. Vermont. Eeed v. Eeed, 56 Vt. 492. It has been held not a ground for reversal that the court failed to give an instruction limiting the effect of evidence, not competent for some purposes, where to do so would have the effect of calling the attention of the jury to a very strong criminating fact, and so the omission was not calculated to injure the accused. Alabama. Southern Ey. Co. v. Eeaves, 129 Ala. 457; Pearson v. Adams, 129 Ala. 157; Huskey v. State, 129 Ala. 94; Decatur Car Wheel & Manufacturing Co. v. Me- haffey, 128 Ala. 242; Gilmore v. State, 126 Ala. 20. Kentucky. Travelers' Ins. Co. v. Clark, 109 Ky. 350, 95 Am. St. Eep. 374. Nebraska. Chapman v. State, 61 Neb. 888. Texas. Thornley v. State, 36 Tex. Cr. App. 118, 61 Am. St. Eep. 837. West Virginia. State v. Morrison, 49 W. Va. 210. United States. Connecticut Mut. Life Ins. Co. v. Hillmon, 46 C. C. A. 668, 107 Fed. 834. 3— Eaton v. State, 8 Ala. App. 136. 338 Instructions to Juries. [§ 147 argumentative 4 and misleading, 5 as having a tendency to induce the jury to give undue weight to the evidence singled out. 6 It has also been held that such instructions are violative - of constitutional provisions as to charging on the facts. 7 If the court either upon its own motion or at the request of a party selects or makes special mention of some one alleged fact or feature of the testimony and instructs upon its legal effect, this particular phase of the case is given undue prominence and may work substantial injustice. 8 The trial judge cannot emphasize special parts of tbe testimony to the exclusion of other parts, laying stress now upon this and now upon that portion of the evidence, 9 and an instruction which centers the jury's attention upon a mere detail, thereby giving it undue prominence, and thus obscuring the questions involved, is erroneous. 10 "It is error for the court to single out a certain fact or circumstance and instruct the jury as to the legal inference to be deduced from that particular fact to the exclusion 4 — Louisville & N. E. Co. v. Hurt, L. By., 87 8. C. 190. See also, State 101 Ala. 34; Martin v. Johnson, 89 v. Johnson, 85 S. C. 265. 111. 537; Chapman y. State, 61 Neb. 8 — Gray v. Chicago, E. I. & P. E. 888; Seed v. Seed, 56 Vt. 492. Co., 160 Iowa 1. 5 — Barbour v. Shebor, 177 Ala. 304. 9 — Gulf Compress Co. v. Stuyve- 6 — McCartney v. McMullen, 38 111. sant Ins. Co. of Pennsylvania, 129 237; Strehmann v. City of Chicago, Tenn. 586. 93 111. App. 206; Safe Deposit & All the evidence is for the con- Trust Co. of Baltimore v. Berry, 93 sideration of the jury, and the prac- Md. 560; Medlin v. Wilkins, 60 Tex. tice of making detached portions 409; De Eossett v. State, — Tex. Cr. prominent should not be encouraged. App. — , 168 S. W. 531; State v. Mor- Hatch v. Marsh, 71 111. 370. rison, 49 W. Va. 210. 10— Geddes v. Van Ehee, 126 ,7 — The Constitution does not al- Minn. 517. low the presiding judge to state the It is error to single out a par-/ evidence. Much less does it allow ticular fact appearing from the evi- him to single out any particular act dence and instruct the jury that such or omission of the defendant and in- fact alone is insufficient to warrant struct that if that appears the jury or prevent a recovery. Swan v. Bos- may infer that the defendant was ton Store of Chicago, 177 111. App. negligent. Finch v. Atlanta & C. A. 349, 7 N. C.-C. A. 938. 147] Undue Prominence to Evidence or Issues. 339 of other facts," 11 and an instruction directing a verdict, which, caljs attention to certain portions of the evidence and thereby emphasizes the same, is misleading. 12 Instructions should not be so drawn as to direct the atten- tion of the jury only to the facts which are favorable to one of the parties, leaving out of view those which sustain or tend to sustain the contention of his adversary. 13 There are some exceptions to the general rule as to sin- gling out and giving undue prominence to particular facts, however. Thus it has been held that such rule has no appli- cation where plaintiff's entire case rests upon a single undisputed fact, 14 and it has been said that the court may 11— Kellogg v. Ford, 70 Ore. 213, 139 Pac. 751. The instructions "should be so framed that all parts of the ^evidence should be considered and weighed by the jury," and not be based on isolated parts of the evidence. Reese v. Beck, 24 Ala. 662; Newton v. State, 37 Ark. 333; Winter v. Ban- del, 30 Ark. 383; Phillips v. Roberts, 90 111. 492; Moore v. Wright, 90 111. 470; City of Aurora v. Hillman, 90 HI. 61; Ogden v. Kdrby, 79 111. 557; Wilson v. White, 80 N. C. 280. 12— Miller v. Eversole, 184 111. App. 362. An instruction which singles out an inconclusive fact and directs a verdict thereon, or which particu- larly directs the attention of the jury and gives undue prominence to certain facts and portions of the evi- dence, is properly refused. Swigart v. Savely, 176 111. App. 369. 13 — Georgia. Flowers v. Flowers, 92 Ga. 688. Illinois. Pennsylvania Co. v. Con- Ian, 101 111. 93; Protection Life Ins. Co. v. Dill, 91 111. 174; Graves v. Col- well, 90 111. 612; Moore v» Wright, 90 III. 470; City of Aurora v. Hillman, 90 111. 61; Martin v. Johnson, 89 111. 537; Evans v. George, 80 111. 51; Pittsburgh, C, C. & St. L. R. Co. v. Dahlin, 67 111. App. 99. Michigan. Banner v. Schlessinger, 109 Mich. 262; People v. Murray, 72 Mich. 10. Mississippi. Prine v. State, 73 Miss. 838. Pennsylvania. Hayes v. Pennsyl- vania, R. Co. 195 Pa. St. 184; Reber v. Herring, 115 Pa. St, 599; Minick v. Gring, 1 Pa. Super. Ct. 484. It is not reversible error for the court to recite the evidence for the plaintiff more fully than the evi- dence for the defendant, where the substance of both is fairly and im- partially stated. Jamison v. Haw- kins, 13 Pa. Super. Ct. 372. It is the duty of the jury to con- sider all the testimony in the case, as well that which makes for one party as for the other. Moore v. Wright, 90 111. 470. 14— Keyes v. Fuller, 9 111. App. 528. See also, Love v. Gregg, 117 N. C. 467, where it was held that an instruction that if the jury believe a single uncontradicted witness the case is made out, was not erroneous. 340 Instructions to Jueies. [§ 147 properly call the attention of the jury to evidence which is obscure, and which might escape their attention. 15 Though it is not ordinarily competent for a party to select a part of the facts which his adversary claims to have proved, and require a charge upon them, yet an in- struction may be based on facts so selected, if their effect cannot be varied by others which may have been proved. 16 A party may ask an instruction that certain facts in the case present a certain question of law, and has a right to the opinion of the court as to what principle is applicable to the facts, though other facts, not embraced in the hypoth- esis assumed, may justify an application for other and different instructions. 17 Whether or not the charge gives undue prominence to a portion of the evidence depends upon the nature of the evi- dence, and if the substance of the evidence for both parties is fairly and impartially stated, one party cannot complain that the evidence of his -adversary is more fully or promi- nently stated than his own. 18 ' It has been said that the court will not, as a general rule, reverse for the giving of instructions singling out and giv- ing undue prominence to evidence, if there are no other errors, 19 and an instruction is not objectionable on the ground that it gives undue prominence to certain facts, if such facts are immaterial to the issues involved, 20 but if it 15 — West v. Chicago & N. W. Ey. phasizing "any particular portion of Co., 77 Iowa 657. the evidence * * * will only 16 — Beer's v. Housatonic R. Co., afford ground for reversal when it is 19 Conn. 570. calculated to mislead the jury." 17 — Birney v. New York & W. And see Bertram v. People 's Ey. Co., Printing Tel. Co., 18 Md. 341, 81 154 Mo. 639; Gulf, C. & S. P. Ey. Am. Dec. 607n. Co. v. Gordon, 70 Tex. 80; Houston 18— Irvin v. Kutruff, 152 Pa. St. & T. C. Ey. Co. v. Larkin, 64 Tex. 609; Jamison v. Hawkins, 13 Pa. 454; Maes. v. Texas & N. O. Ey. Co. Super. Ct. 372. (Tex. Civ. App.), 23 S. W. 725. 19— McCartney v. McMullen, 38 20— Bertram v. People's Ey. Co., 111. 237. See also, Medlin v. Wilkins, 154 Mo. 639, wherein the instructions 60 Tex. 409, where It was said that gave undue prominence to plaintiff's a disregard of the rule against em- advanced age. See also Conover v. § 148] Undue Prominence to Evidence ok Issues. 341 is clear that the jury have been misled to the injury of the party complaining, the judgment will be reversed. 21 Thus, if the case is a close one on the evidende, and the court singles out and lays special stress on the evidence in favor of one of the parties, and no special reference is made anywhere in the charge to any of the evidence favor- able to the other side, the judgment will be reversed. 22 § 148. Same— Instructions held erroneous as singling out and giving undue prominence to the evidence. As illustrative of the rule against singling out and giving undue prominence to portions of the evidence, it has been held error to give instructions that the jury may look to certain facts in determining questions of fact before them, 23 that the jury cannot look to certain evidence in determining a disputed question of fact, 24 or that certain facts in evi- dence are not conclusive evidence of one of the ultimate facts in issue, irrespective of whether the proposition of law is correct or not. 25 "An instruction which selects conversations, testified to by the party asking it, and attempts to lay down certain conditions, upon- which, alone, such conversations can be regarded as proved by a preponderance of the evidence" is erroneous, 26 and it has also been held error to give a charge that the declarations and admissions of a party to ' r. Carpenter, 57 Wash. 146, 106 Pac, 688; McCabe v. City of Philadelphia, 620; Schubert v. Schubert, 168 111. 12 Pa. Super. Ct. 383. App. 419. 23 — Jackson v. Robinson, 93 Ala. 21 — Flowers v. Flowers, 92 Ga. 157; Alabama Great Southern E. Co. 688; Holt v. State, 62 Ga. 314; Jack- v. Sellers, 93 Ala. 9, 30 Am. St. Bep. sonville. & S. E. By. Co. v. Walsh, 106 17; Hussey v. State, 86 Ala. 34; 111. 253; Pennsylvania Co. v. Stoelke, Huffman v. Graves, 245 111. 440. 104 111. 201; Brown v. Monson, 51 ■ 24 — Stone v. State, 105 Ala. 60. 111. App. 490; Com. v. Delaney, 16 See also, Gash v. Home Ins. Co., 153 Ky. L. Bep. 509; Polly v. Com., 16 111. App. 31; Huffman v. Graves, 245 Ky. L. Bep. 203; Beber v. Herring, 111. 440. 115 Pa. St. 599; McCabe v. City of 25— Merchants ' Loan & Trust Co. Philadelphia, 12 Pa. Super. Ct. 383. v. Lamson, 90 111. App. 18. 22— Flowers v. Flowers, 92 Ga. 26— Home v. Walton, 117 111. 131. 342 Instructions to Juries. [§148 the action can be considered by the jury as any other evi- dence. 27 So, "an instruction reciting certain acts and declara- tions of the plaintiff as testified to by the defendants, and informing the jury that if they believe the existence of such facts and circumstances as sworn to, then such facts, unless otherwise satisfactorily explained, have a tendency to prove that the defendants did not make the alleged con- tract," is erroneous. 28 An instruction to "look to the declarations of the plain- tiff, C, to see whether she ever claimed the property in question as her homestead, and to her declarations about leaving it; and they will look to the evidence to see whether she did leave it or leave the state in accordance with her declarations, and, if so, then her declarations are' evidence of her intention, and, if the evidence shows that she left the state in 1866, and refused to return when requested by her husband by letter, then the abandonment is complete, and the jury will find for defendant," is also erroneous. 29 It is erroneous to give an instruction calling the attention of the jury specially to certain portions, bearing upon the question of the scope of a party's agency, and omitting other facts in evidence bearing upon the same question, 30 as well as to give an instruction, where a photograph was admitted to show the location and appearance of buildings, that "it was for the jury to say how much stock they take in testimony of that kind," since the intimation was that the jury ought not to give any weight to such evidence. 31 On the subject of adverse possession, it is not error for the court to refuse to single out and emphasize evidence that the giving of a deed or mortgage by one in possession of land is ordinarily evidence, of assertion of title. 32 27— Dobbs v. Cates ' Estate, 60 Mo. 30-^Pope v. Lowitz, 14 111. App. App. 658. 96. 28— Brant v. Gallup, 5 111. App. 31— City of Chicago v. Spoor, 190 262. 111. 340, rev'g 91 111. App. 472. 29 — Burcham v. Gann, 1 Posey 32 — Carr v. Mouzon, 86 8. C. 461. Unrep. Cas. (Tex.) 333. § 148] Undue Prominence to Evidence oe Issues. 343 Except in cases where the law itself raises a particular presumption from a certain fact or set of facts, the judge should not give his opinion of the probative value of a par- ticular fact, and comment upon any particular fact in evi- dence is equally" vicious, whether its effect is to exaggerate or diminish the importance of such fact as evidence. 33 And it is also improper to call the attention of the jury to particular testimony in such a way as to throw discredit upon it, or to lead the jury to believe that the judge dis- credits the testimony of the witnesses. 34 In negligence cases the following instructions have been held erroneous: An instruction singling out an isolated fact, and telling the jury that, as matter of law, it amounts to negligence; 35 an instruction calling attention to a single omission of the defendant, and submitting to the jury the •question whether such omission constituted negligence, without reference to the surroundings or attendant circum- stances; 36 an instruction that the occurrence of a miscar- riage did not tend to prove that the accident was the proxi- mate cause of it, and not stating the other evidence ; 37 an instruction singling out a particular act, and stating that it would not constitute proper care, the issue being con- tributory negligence; 38 an instruction as to contributory negligence which singles out and calls the attention of the jury to a particular point in the evidence that is indecisive and a mere circumstance bearing upon such fact, omitting reference, except by the words "in connection with the other facts and circumstances of the case," to all other important circumstances in proof, is erroneous and mis- 33 — Leeser v. Boekhoff, 33 Mo. 111. App. 446. See also, Krieger v. App. 223. Aurora, E. & C. R. Co., 148 HI. App. 34 — Wilson v. Hotchkiss' Estate, 613. 81 Mich. 172. And see Wolf v. City 37— Strehmann v. City of Chicago, of Venice, 152 111. App. 585, rev'd 93 111. App. 206. 242 111. 544. 38— International & G. N. R. Co. 35 — Meyer v. Pacific R. Co., 40 v. Newman (Tex. Civ. App.), 40 S. Mo. 151. W. 854. 36— Wabash R. Co. v. Stewart, 87 344 Instructions to Jubies. [§ 148 leading as giving undue prominence to such indecisive point. 39 A charge singling out circumstances which the jury might consider as tending to excuse a plaintiff's wife in jumping from the steps of a moving train and directing the jury that such circumstances would excuse her unless the danger was so apparent that no person of ordinary prudence would have undertaken it, is improper. 40 In an action for personal injuries, an instruction given for the plaintiff which calls special attention to the dis- figurement of the plaintiff as a basis for estimating dam- ages, is erroneous. 41 Also, an instruction on damages calling particular atten- tion to loss of masculine vigor is improper. 42 In criminal cases it is error to single out the question of motive for the commission of the crime or the absence of motive and tell the jury they may consider that as a cir- cumstance in favor of the guilt or innocence of the accused, 43 or to give an instruction that if the jury believe the testimony of a particular witness with regard to a dis- puted fact, they must acquit. 44 A charge which singles out part of the evidence and instructs that an acquittal should be had upon a considera- tion of the evidence specially referred to, in connection with other evidence in the case, is improper, 45 and it is error to give an instruction singling out the conduct, demeanor or expressions of the defendant, when their weight and impor- tance depend wholly on their combination with other incul- patory facts, and directing the jury 1 that they may look to it alone, as tending to show the defendant's guilt. 49 39 — Bice v. Wheeling Electrical 43— Scott v. State, 109 Ark. 391: Co., 62 W. Va. 685. 44— Frost v. State, 124 Ala. 71. 40— Ft. Worth & D. C. B. Co. v. 45— Watts v. State, 8 Ala. .App. Watkins, 48 Tex. Civ. App. 568. 264. , 41— Taylor v. Peoria, B. & C. Trac- 46— McAdory v. State, 62 Ala. 154. tion Co., 184 111. App. 188. 42 — Loftus v. Illinois Midland Coal Co., 181 111. App. 197. • § 148] Undue Prominence to Evidence ob Issues. 345 It is also error to give an instruction that "accused may offer evidence of his previous good character, not only where a doubt exists on the other proof, but even to gen- erate a doubt as to his guilt." 4T An instruction which informs the jury that they may consider threats made by the deceased against the defend- ant in determining who brought on the difficulty, and thus generate a doubt of defendant's guilt, is erroneous. 48 An instruction that flight "is a silent admission by the defendant that he is unwilling or unable to face the case against him. It is in some sense — feeble or strong, as the case may be — a confession, ' ' has also been held erroneous. 49 On a trial for homicide, where there is competent evi- dence that the defendant is guilty and that he committed the crime to gratify a desire for revenge rather than through fear of injury, it is improper to call attention to such evi- dence in an instruction. 50 An instruction that "a house of prostitution cannot be proven to be such by mere reputation, but other evidence must be offered," should not be given when it singles out such evidence of reputation and there is other evidence in the case. 51 An instruction that if the jury find the defendant guilty they should consider certain enumerated facts in determin- ing what punishment should be inflicted, where the facts enumerated are favorable to the defendant, and the in- struction does not particularize other testimony having a contrary tendency, is erroneous. 52 47 — Miller v. State, 107 Ala. 40. be sufficient to raise a presumption 48— Crawford v. State, 112 Ala. 1. of guilt. 49—Alberty v. United States, 162 50— State v. Rogers, 253 Mo. 399. U. Si 499, 40 L. Ed. 1051, in which 51— Smith v. State, — Tex. Cr. the reviewing court said that this App. — , 164 S. W. 825. instruction placed too much stress on 52 — Gilmore v. State, 126 Ala. 20, the fact of flight, and permitted the holding that such an instruction was inference that this fact alone might properly refused. 346 Instructions to Juries. [§ 149 § 149. Same — Instructions held not erroneous as singling out and giving undue prominence to the evidence. An instruction containing a mere statement of the plain- tiff's claims is not erroneous, 53 and where contradictory testimony has been given, it is not error to instruct the jury to consider the probability or improbability of such testi- mony. 54 Also an instruction that if the jury shall find from the evidence that the facts involved in the issue are proven, reciting the facts, they shall find for the party whose case is established by such facts, is not erroneous. If the facts alleged in the declaration are sufficient to make out plain- tiff's case, and the court recites all of such facts, the objec- tion cannot be urged that the instruction did not state the facts going to establish the defense. 55 An instruction stating the law on the issue of negligence in not having proper appliances to prevent the emission of sparks, when such issue is not presented elsewhere, except in instructions requested by the defendant, is not erro- neous. 56 In an action for death by wrongful act, it is not error to instruct the jury that if the mind and mental faculties of the deceased were impaired and, by reason of such con- dition of mind, he could not comprehend the danger in attempting, to cross the tracks, they should consider such fact in determining the question of contributory negli- gence. 57 On a trial of two defendants for an affray, where the 53 — McCann v. Ullman, 109 Wis. Moines City B. Co., 145 Iowa 560, 574. . where an instruction in a negligence 54 — Bowsher v. Chicago, B. & Q. case was held not erroneous although B. Co., 113 Iowa 16. portions of the evidence were pre- 55 — Chicago & N. W. By. Co. v. sented to the jury for consideration Snyder, 117 111. 376; Frame v. Bad- in determining negligence, ger, 79 111. 442. 57 — Jackson v. Kansas City, Ft. 56— International & G. N. B. Co. S. & M. E. Co., 157 Mo. 621, 80 Am. v. Newman (Tex. Civ. App.), 40 S. St. Eep. 650. W. 854. See also, Engvall v. Des § 150] Undue Pbominence to Evidence oe Issues. 347 testimony of each tended to excuse himself and to convict the other, an instruction to acquit one of the defendants if they believed his representation of the facts, and to convict both if they accepted the testimony of a named person, but that they should acquit such defendant unless they were satisfied of his guilt from all the testimony, has been held not to give undue emphasis to the testimony of the witness named. 58 On a prosecution for rape, where it was necessary for the court to require the commonwealth to select one certain time at which defendant was alleged to have committed the crime, an instruction referring to an occasion as to which the prosecutrix testified was proper, so that the jury might confine their verdict to the crime committed on that occa- sion. 59 An instruction that certain evidence, brought out on cross-examination of the defendant, could be considered only as affecting his credibility, and not as tending to show guilt of the crime charged, is not erroneous. 60 § 150. Singling out particular witnesses. It is improper to give an instruction which singles out the testimony of a particular witness or particular witnesses and gives undue prominencethereto. 61 58— State v. Weathers, 98 N. C. Venice, 152 111. App. 585; People v. 685. Whalen, 151 111. App. 16; Hughes v. 59— McCreary v. Com., 158 Ky. Hughes, 133 111. App. 654; Donahue 612. . v. Egan, 85 111. App. 20. 60 — Jasper v. State (Tex. Cr. Michigan. Eraser v. Haggerty, App.), 61 S. W. 392. 86 Mich. 521; Chase v. Buhl Iron 61 — Alabama. Central of Georgia Works, 55 Mich. 139; People v. R. Co. v. Dothan Mule Co., 159 Ala. Simpson, 48 Mich. 474; Grand Eap- 225; Southern Ey. Co. v. Eeaves, ids & I. E. Co. v. Judson, 34 Mich. 129 Ala. 457; Thompson v. State, 507; Westchester Fire Ins. Co. v. 106 Ala. 67; Steed v. Knowles, 97 Earle, 33 Mich. 143. Ala. 573; Gibson v. Snow Hardware Minnesota. State v. Yates, 99 Co., 94 Ala. 346. Minn. 461. Illinois. People v. Mendelson, 264 Mississippi. Pigott v. State, — 111. 453, L. E. A. 1915 C 627n; Judy Miss. — , 65 So. 583. v. Judy, 261 111. 470; Wolf v. City of North Carolina. State v. Eogers, 348 Instructions to Jueies. [§150 An instruction on the credibility of witnesses should be in general terms, 62 and the practice of singling out a par- ticular witness and charging specifically as to his interest in the case has often been disapproved on the ground that it gives undue prominence to his testimony and tends to discredit it. 63 When an instruction as to the impeachment of witnesses is in general terms, it is not special because it is applicable to only one witness. 64 While it has been held improper to single out a witness by name, 66 it has also been held that where "there is but one witness who testifies to a certain fact, and a party is entitled to have the existence of the fact so testified to sub- 93 N. C. 523; Jackson v. Greene County Com'rs, 76 N. C. 282; Willey v. Gatling, 70 N. C. 410; Brem v. Allison, 68 N. C. 412. Texas. Bell v. Hutchings (Tex. Civ. App.j, 41 S. W. 200. The court should not place a par- ticular witness in undue prominence by charging the jury to find accord- ing to their belief or disbelief in his evidence. Thompson v. State, 106 Ala. 67; Fraser v. Haggerty, 86 Mich. 521; Chase v. Buhl Iron Works, 55 Mich. 139; People v. Simpson, 48 Mich. 474; Dolan v. Delaware & H. Canal Co., 71 N. Y. 285; McGrath v. Metropolitan Life Ins. Co., 6 N. Y. St. 376; Jackson v. Greene County Com'rs, 76 N. C. 282; Willey v. Gat- ling, 70 N. C. 410; Brem v. Allison, 68 N. C. 412. 62 — North Chicago St. E. Co. v. Wellner, 206 111. 272, aff'g 105 111. App. 652. 63 — Krahn v. J. L. Owens Co., 125 Minn. 33, 51 L. E. A. (N. S.) 650. Instruction construed as not sin- gling out a particular witness. Chi- cago & A. E. Co. v. Winters, 175 111. 293, aff'g 65 111. App. 435. Instruction calling attention to the plaintiff's interest in the suit held proper. Helbig v. Citizens' Ins. Co., 234 111. 251, aff'g 138 111. App. 115. 64 — An instruction as to impeach- ment of witnesses held not special by being applicable to only one wit- ness. Penney v. Johnston, 142 111. App. 634. , An instruction on the credibility of witnesses is not improper because singling out a particular witness, ^rhere he was the only one sought to be impeached. Stevens v. People, 215 111. 593. 65 — It is improper to single out a witness by name and instruct the jury that they are judges of his credibility, though they are further instructed that they are also judges of the credibility of all the other witnesses. This instruction is cal- culated to make the jury believe that there is more question as to the credibility of the witness thus sin- gled out than as to that of the other witnesses. Davidson v. Wallingford, 88 Tex. 619. See also, Goodhue Far- mers' Warehouse Co. v. Davis, 81 Minn. 210. §151] Undue Prominence to Evidence or Issues., 349 mitted to the jury by instruction, the mere reference, in such an instruction, to the name of the witness, as a method of identifying his evidence, does not render the instruction erroneous, so as to justify the refusal of it." 66 It may also be stated that a charge may be based on the evidence of a single witness in the cause, without noticing other testimony, if the testimony of the single witness is of such character that, if believed by the jury, it is decisive of the merits of the cause. 67 § 151. Same — Illustrations. "It is not customary or good'practice to select the testi- mony of one witness, and tell the jury that they cannot render a verdict upon that testimony alone. While this may be true, the jury have a right to consider the testi- mony * * * in connection with all the other testimony in the case. " 68 An instruction which dwells repeatedly on the cases, where one witness is contradicted by more than one, and yet is to be believed, in a case where plaintiff's side of the case is supported by one witness and that of defendant by several witnesses, is erroneous, 69 and it is proper to refuse .an instruction "that, if they [the jury] believe the testi- mony of certain witnesses as to the whereabouts of the - 66 — Hartmann v. Louisville & N. Chicago City Ry. Co., 172 111. App. R. Co., 39 Mo. App. 88. 557. ' 67— Hart v. Bray, 50 Ala. 446. 68 — Dawson i v. Falls City Coat The judge can declare the law Club, 125 Mich. 433. upon certain facts, which the testi- It is proper to refuse an instruc- mony of a single witness tends to tion which puts a case to the jury prove, without noticing other evi- upon the testimony of a single wit- dence pertaining to other phases of ness, and which directs them that if the case. Garrett's Adm'rs v. Gar- they believe such witness their ver- rett, 27 Ala. 687. diet should be for a designated party. An instruction as to one witness is Grand Rapids & I. R. Co. v. Judson, not objectionable where such mat- 34 Mich. 507. ter was substantially the whole 69 — Lendberg v. Brotherton Iron theory of the defense. Lecklieder v. Min. Co., 75 Mich. 84. 350 Instructions to Juries. [§ 151 defendant at the time of the * * * alleged offense," they should acquit him. 70 In instructing as to the credibility of witnesses, it may be proper to enumerate elements which the jury may con- sider, but an instruction that the jury "must" or "should" consider such elements is liable to be misleading. 71 An instruction that the plaintiff was a witness in his own behalf, that the jury are the sole judges. of his credibility, that all statements made by him, if any, which are against his own interest must be taken as true, but his statements in his* own favor are only to be given such credit as the jury under all the facts and circumstances in evidence deem them entitled to, is erroneous. 72 An instruction that in passing on the testimony of all the witnesses the jury might consider any interest which such witnesses might feel, is not objectionable as calling special attention to their credibility. 73 An instruction that in considering the testimony of wit- . nesses, including that of the defendant, the jury will take into consideration the interest, if any, that the witness has , in the result of the trial, is not such a reference to the testi- mony of the defendant as to pointedly aim at the credibility of the defendant as a witness for himself, or to impress the jury with the idea that the judge questioned his credi- bility. 74 An instruction as to ratification of alteration of a note which particularly refers to one defendant because he was the only solvent signer to the note, and the only real de- fendant to the action, is not objectionable. 75 70 — Thompson v. State, 106 Ala. /plaintiff and commenting on his tes- 67. timony, and because it erroneously 71 — Lyons v. Chicago City Ry. Co., declares the law. See the cases cited 258 111. 75. in the Meyers case. 72 — Meyers v. Chicago, B. & Q. R. 73 — Chicago & A. R. Co. v. Ander- Co., 171 Mo. App. 283. ^ son, 166 111. 572. This instruction has been repeat- 74 — Fuentes v. State, 64 Fla. 64. edly condemned by the Missouri 75 — Waugh v. Cook, — Ark. — , Supreme Court as singling out the 167 S. W. 103. § 152] Undue Prominence to Evidence or Issues. * 351 An instruction in an action of tort, that if the jury should give plaintiff's statements credit after considering the defendant's denial and all other testimony, the verdict should he for plaintiff, the court having also charged that the jury should take into consideration the whole of the testimony of plaintiff, and determine whether it was rea- sonable or not, and give it such weight as they should deem it entitled to, is not error. 76 So, an instruction that if the jury believe the evidence of a designated witness they will find for plaintiffs has been held not erroneous, as giving undue prominence to the testi- mony of the witness, where there were only two witnesses for the plaintiffs and one of them was called solely to cor- roborate the testimony of the witness mentioned. 77 § 152. Repetition. It is improper for the court to place too prominently be- fore, the jury any principle of law involved in the case, as by frequent repetition. 78 Where a number of instructions announce in varying lan- guage a single rule of law, the effect is to unduly impress the single principle announced upon the jury's minds to the exclusion, perhaps, of other equally important principles. 79 Repeated reference to the conditions upon which the plain- tiff in a given case may recover, or what defense by the 76 — Schenk v. Dunkelow, 70 Mich. 79 — People v. Harrison, 261 HI. 89. 517. 77— Gregg v. Mallett, 111 N. C. 74. Eepeating the same propositions in 78 — Cincinnati Traction Co. v. different instructions and emphasiz- Nellis, 81 Ohio St. 535; Traylor v. ing points by repetition tends to Townsend, 61 Tex. 144; Powell v. prejudice the rights of litigants and Messer's Adm'r, 18 Tex. 401; Size-* has frequently been condemned, more v. St. Louis & S. F. By. Co., Bacon v. Walsh, 184 111. App. 377. — Tex. Civ. App. — , 130 S. W. 1024; The giving of a number of instruc- Brady v. Georgia Home Ins. Co., 24 tions concluding with a direction to Tex. Civ. App. 464. See also, Gal- return a verdict of "not guilty," lagher v. Neilon, — Tex. Civ. App. and unduly emphasizing by frequent — , 121 S. W. 564. repetition certain principles of law, Contra, Murray v. New York, L. held prejudicial. Wood v. Illinois & W. B. Co., 103 Pa. St. 37. Cent. R. Co., 185 111. App. 180. 352- Instructions to Juries. [§152 defendant will defeat a recovery, is improper and sometimes erroneous. 80 Repetitions are not reversible error when necessary in order to apply any given rule of law to the various phases of the case raised by the evidence, 81 or when such repetitions are not given such prominence as is calculated to mislead the jury into believing that the issue referred to Was the control- ling one. 82 It is also the rule that instructions should not be so drawn as to direct and repeatedly call attention to particular facts or features not in themselves conclusive; 83 but a violation of this rule is not necessarily a ground for reversal, and it seems that the judgment should not be reversed unless it is apparent that injury has resulted. 84 § 153. Same — Illustrations. In an action for injuries to a servant caused by a ladder being caught in machinery when he was carrying it, where 80 — Carter v. Missouri, K. & T. a fact or facts in evidence, as this Ry. Co. of Texas, — Tex. Civ. App. is calculated to give undue promi- ■ — , 160 S. W. 987. nence to such testimony. Meachem 81 — Carter v. Missouri, K. & T. v. Hahn, 46 111. App. 149; Mendes v. By. Co. of Texas, — Tex. Civ. App. Kyle, 16 Nev. 369; Gulf, C. & S. F. — , 160 S. W. 987. Ry. Co. v. Harriett, 80 Tex. 73; Where an instruction requiring the Stringf ellow v. Braselton, 54 Tex. plaintiff to prove his case by a pre- Civ. App. 1. ponderance of evidence is given in 84— Gulf, C. & S. F. Ry. Co. v. connection with each issue of negli- Gordon, 70 Tex. 80; Houston & T. gence submitted to the jury, there is C. Ry. Co. v. Larkin, 64 Tex. 454; not such a repetition of the rule of Maes v. Texas & N. O. Ry. Co. (Tex. law as to give undue prominence to Civ. App.), 23 S. W. 725. In Hous- it. Martin v. St. Louis & S. W. Ry. ton & T. C. Ry. Co. v. Larkin, ante, Co. (Tex. Civ. App.), 56 S. W. 1011. "it was held that the mere repetition, See also, Gran v. Houston, 45 Neb. in a charge', of the abstract principle 813. that the jury might consider the 82 — Carter v. Missouri, K. & T. physical and mental suffering the Ry. Co. of Texas, — Tex. Civ. App. plaintiff had endured in estimating — , 160 8. W. 987. damages, cannot be regarded as cal- 83 — Meachem v. Hahn, 46 HI. App. culated to affect a jury of ordinary 149. intelligence, and will afford no It is error to refer repeatedly to ground for reyersal. § 154] Undue Prominence to Evidence or Issues. 353 the court fully and fairly instructed on the care to be exer- cised by the plaintiff in handling the ladder, the repetition of the proposition in a different language was calculated to give undue prominence and importance to such issue, and an instruction repeating such proposition was erroneous. 85 In an action for injuries sustained in a collision at a cross- ing, the submission of the issue of contributory negligence in several variant forms was unnecessary and tended to unduly impress the jury. 86 In an action for injuries to a passenger thrown against a seat by a jerk of the train, where the issues as to whether or not the plaintiff's wife was guilty of contributory negligence or whether she died from the injuries or from natural disease were sharply contested, the repetition in the charges of the law as to such issues in such a manner as to impress the jury that the plaintiff was not entitled to recover was error. 87 In an action for injuries sustained by a passenger while alighting from a train, due to a stool being placed on an uneven box, repeated charges laying stress upon the fact that the box was possibly an unsafe appliance or was im- properly constructed, gave too much prominence to such question. 88 § 154. Singling out issues and theories. A defendant has the right to demand the giving of a charge based upon any specified group of facts which, if found to be true, would constitute a good defense, 89 but this rule cannot be held to authorize or require the giving of numerous charges upon a single fact or group of facts con- 85— Eedmond v. Sherman Cotton 88— Missouri, K. & T. E. Co. of Mills, — Tex. Civ. App. — , 100 S. W. Texas v. Dunbar, 49 Tex. Civ. App. 186. 12. 86 — Buchanan v. Missouri, K. & 89 — Mayfield v. Gause, — Tex. Civ. T. B. Co. of Texas, 48 Tex. Civ. App. — , 164 S. W. 927. See also, ch. App. 299. Xni, §§ 138 et seq., ante, "Summing 87 — Sizemore v. St. Louis & S. F. up the Evidence." Ey. Co., — Tex. Civ. App. — , 130 S. W. 1024. Blashneld Vol. 1—23 354 Instructions to Juries. [§154 stituting a single defense, merely because such charges are ' differently phrased, 90 and the practice of singling out one among several important issues, and submitting it to the jury as the controlling issue, is improper. 91 90— Mayfield v. Gause, — Tex. Civ. App. — , 164 S. "W. 927; Sizemore v. St. Louis & S„ F. By. Co., — Tex. Civ. App. — , 130 S. W. 1024; Hamm v. Briant, 57 Tex. Civ. App. 614, 124 S. W. 112. 91 — Bowden v. Achor, 95 Ga. 243; Dallas & O. C. El. By. Co. v. Harvey (Tex. Civ. App.), 27 S. W. 423; Trin- kle v. State, 60 Tex. Cr. App. 187. It is error to emphasize a particu- lar issue. Zoeller v. Court of Honor, 168 111. App. 562. On a trial for homicide, an instruc- tion which singles out facts sur- rounding a prior difficulty and places that issue with undue prominence, before the jury is erroneous. Boque- more v. State, 59 Tex. Cr. App. 568. CHAPTER XV. Requests fob Instructions. § 155. Introduction. § 156. Rule that instructions must be requested. § 157. Rule that court must instruct whether requested or not. § 158. Same — Criminal cases. § 159. Rule in Texas. § 160. Rule in Mississippi. § 161. Necessity of request where insufficient instructions are given. § 162. Same — Illustrations. § 163. Same — Instructions defective in form. § 164. Misleading instructions. § 165. Same — Pleadings and issues. § 166. Same — Evidence. § 167. Same — Witnesses. § 168. Same— Verdict. § 169. Same — Criminal cases. § 170. Negligence cases. § 171. Same — Damages — Costs. § 172. Necessity of request where erroneous instructions are given. § 173. Time of making request. } 174. Necessity of requesting instructions in proper time. 5 175. General requisites and form of requested instructions. 1 176. Written request. • 5 177. Inspection by adverse party or counsel, j 178. Submission of several requests on same proposition. ] 179. Limitation on number. ] 180. Signing by party or counsel. i 181. Disposition of requests. 5 182. Marking instructions ' ' Given " or " Refused. ' ' i 183. Effect of noncompliance with statute. i 184. Right to instructions requested. i 185, Right to instructions as affected by state of evidence. } 186. Requests embodied in instructions given. i 187. Same — Illustrations. i 188. Same — Qualifications and exceptions to rule. i 189. Duty to follow language of request. i 190. Modification of requested instructions. i 191. Particular modifications considered. i 192. Modification as harmless or reversible error. i 193. Manner of making modification. ( 355 ) 356 Instructions to Juries. [§ 155 § 155. Introduction. It has already been noted that at common law and unless prohibited by statute, the court has a right to give the jury correct instructions applicable to the law and facts of the case, irrespective of whether any instructions have been requested by the parties or not. 1 -But as already indicated this is a matter which is gov- erned largely if not entirely by the statutory provisions of the various states and accordingly there is some conflict as to the necessity of requesting instructions as well as the duty and right to give a charge. In the succeeding sections the questions as to the neces- sity of requesting instructions where no instructions are given, 2 or where the instructions given are insufficient 3 or erroneous 4 will be considered. § 156. Rule that instructions must be requested. But in a number of states the rule is well established that, if the parties desire to have instructions given to the jury> they must make a proper request for instructions, and, in the absence of such a request, it is not error for the court to totally omit giving any instructions. 6 1— See § 5, ante. Co. v. Davis, 138 Ky. 667; Clarke v. 2— See §157,. post. Baker, 7 J. J. Marsh. (Ky.), 197. 3 — See § 161, post. Maryland. Coates v. Sangston, 5 4^-See § 172, post. Md. 121. 5— Arizona. Chung Sing v. United Missouri. Powell v. Union Pac. States (Ariz.), 36 Pac. 205. E - Co -> 255 Mo - 420 ; Parmer v. Florida. Carter v. Bennett, 4 Fla. Farmer, 129 Mo. 530; Nolan v. 233 Johns, 126 Mo. 166; Clark v. Ham- Georgia. Louisville & N. B. Co. merle > 27 Mo " 55: Simond. v. Oliver. t, ,i ini r, ™, a 23 Mo. 32; Drury v. White. 10 Mo. v. Barnwell, 131 Ga. 791. An appar- n _, „ A . ' , ' . „ ' , 354; National Stamping & Electric ent exception exists to the general __ . _.. .. ,,, ° . „,„ , . - .,.„,,-„ Works v. Wicks, 144 Mo. App. 249, rule is recognized in Central of Ga 12g g w _ ^ y B. Co. v. Madden, 135 Ga. 205, 31 & K c R Co> 18g ^ o / pp £ L. R. A. (N. S.) 813n, 21 Ann. Cas. New York# Eooney y Brogan 1077, where it was held not good Const- Co ; 194 N Y 32 . Haupt y practice to entirely omit instruc- Pohlmann, 1 Bob. 121, 16 Abb. Pr. tions. 301. Kentucky. West Kentucky Coal North Carolina. Bynum v. By- § 157] Requests foe Instructions. 357 The court is not bound to instruct on its own motion ° and the failure to request an instruction is a waiver of the right. 7 It has also been said that while it is not good practice to submit cases without an instruction on the facts relied upon, lawyers have such right in civil cases. 8 Where the only instructions requested are erroneous, and therefore properly refused, the court need not instruct gen- erally on the law of the case. 9 A statute requiring the court to charge the jury in writ- ing has been held not to make it the duty of the trial judge to charge the jury in every case, but to merely require the charge to be in writing, if a charge is given, and, where no instructions are requested, none need be given. 10 Where the action is triable by the court, and only specific questions of fact are submitted to the jury, the answers to which may be accepted or rejected by the court, no instruc- tions are necessary. 11 § 157. Rule that court must instruct whether requested or not. In some states it is held that it is the duty of the court num, 33 N. C. 632; State v. Morris, wicz, 213 111. 631, aff'g 115 111. App. 10 N. C. 388. 380. Ohio. Taft v. Wildman, 15 Ohio 129. 8— Williams v. Kansas City, — Texas. Berry v. Texas & N. O. Mo. App. — ,' 177 S. W. 783; Rick- Ry. Co., 72 Tex. 620; Farquhar v. ards v. Kansas City, 181 Mo. App. Dallas, 20 Tex. 200; Linn v. Wright, 336; Wilson v. Kansas City So. Ry. 18 Tex. 317, 70 Am. Dec. 282; Dewees Co., 122 Mo. App. 667. But see, Cen- v. Hudgeons, 1 Tex. 192. tral ° f Ga - R- Go- v. Madden, 135 Ga. Virginia. Womack v. Circle, 29 205 > 31 L - E - A - ( N - S.) 813n, 21 Ann. Gratt. (Va.) 208. Cas - 1077 - Wisconsin. Stuckey v. Fritsche, 77 9— Womack v. Circle, 29 Gratt. Wis. 329; Hepler v. State, 58 Wis. 46. < Va -> 192 " A P art y cannot > b y ask " 6— People v. Lucas, 244 111. 603; ing for an erroneous instruction, or Tll . , , ,, , . . ,. , .... by asking for a general instruction, Illinois Cent. R. Co. v. Atwell, 198 , . ., a , ,, ' th onn «, inn tii a K i q devolve upon the court the duty of 111 200 aff'g 100 111. App 513. charging th& jury m ^ ]aw J> ^ 7 — City of Chicago v. Keefe, 114 case j,j I!1 - 222, 10— Wisconsin Rev. St., § 2853; Error cannot be predicated on the Stuckey v. Fritsche, 77 Wis. 329; failure to give an instruction not re- Hepler v. State, 58 Wis. 46. quested. Central Ry. Co. v. Ankie- 11 — Saint v. Guerrerio, 47 Colo. 358 Instkuctions to Jukies. [§157 to give instructions substantially covering the material is- sues in the case, whether requested or not, 12 though the rule is sometimes confined to criminal cases. 13 The theory of 448, 31 Am. St. Eep. 320, 30 Pae. 335. See also, ch.'23, post, "Issues out of Chancery. ' ' 12 — California. People v. Byrnes, 30 Cal. 206. Connecticut. New London Water Com'rs v. Bobbins, 82 Conn. 623. Georgia. Central E. E. v. Harris, 76 Ga..502; Wall v. Wall, 15 Ga. App. 156. Iowa. Tretter v. Chicago G. W. E. Co., 147 Iowa 375, 140 Am. St. Eep. 304n; State v. Phipps, 95 Iowa 487; State v. Brainard, 25 Towa 572. Kansas. State v. Pf efferle, 36 Kan. 90, 12 Pac. 406. / Kentucky. Heilman v. Com., 84 Ky. 457, 4 Am. St. Eep. 207. Massachusetts. Maxwell v. Massa- chusetts Title Ins. Co., 206 Mass. 197. Michigan. People v. Murray, 72 Mich. 10. Missouri. State v. Stonum, 62 Mo. 596; State v. Matthews, 20 Mo. 55. Nebraska. Housh v. State, 43 Neb. 163. North Carolina. Penny v. Atlan- tic Coast Line E. Co., 153 N. C. 296, 32 L. E. A. (N. S.) 1209n; Phifer v. Alexander, 97 N. C. 335. Vermont. Donahue v. Windsor County M. Fire Ins. Co., 56 Vt. 374. 13 — In 'criminal cases it is the duty of the court, whether properly requested or not, to instruct the jury fully upon all questions of law aris- ing in the case, and a failure to do so is ground for a new trial and re- versible error. Arkansas. Brooks v. State, 91 Ark. 505. California. People v. Byrnes, 30 Cal. 206. Georgia. Porter v. State, 6 Ga. App. 770. Iowa. State v. O'Hagan, ,38 Iowa 504; State v. Brainard, 25- Iowa 572. Kentucky. Gordon v. Common- wealth, 136 Ky. 508; Heilman v. Com., 84 Ky. 457, 4 Am. St. Eep. 207. Michigan. People v. Murray, 72 Mich. 10. Missouri. State v. Bidstrup, 237 Mo. 273; State v. Palmer, 88 Mo. 572; State v. Banks, 73 Mo. 592; State v. Kilgore, 70 Mo. 546; State v. Branstetter, 65 Mo. 155; State v. Stonum, 62 Mo. 596; State v. Mat- thews, 20 Mo. 55; State v. Banks, 10 Mo. App. 111. Oklahoma. Eeed v. State, 3 Okla. Cr. Eep. 16, 103 Pac. 1070. Tennessee. Potter v. State, 85 Tenn. 88; Williams v. State, 3 Heisk, 379; Lang v. State, 16 Lea 433; Nel son v. State, 2 Swan 237. Texas. Bishop v. State, 43 Tex 390; Sanders v. State, 41 Tex. 306 Fulcher v. State, 41 Tex. 233 Maria v. State, 28 Tex. 698; Villa real v. State, 26 Tex. 107; Eobin son v. State, 5 Tex. App. 519; Curry v. State, 4 Tex. App. 574; Wasson v State, 3 Tex. App. 474; Lister v State, 3 Tex. App. 18; Jenkins v. State, 1 Tex. App. 346; Steiner v. Anderson, — Tex. Civ. App. — , 130 S. W. 261; Epperson v. International & G. N. E. Co., — Tex. Civ. App. — , 125 S. W. 117; Gibson & Cunning- ham v. Purifoy, 56 Tex. Civ. App. 379; Miers v. State, 34 Tex. Cr. App* 161, 53 Am. St. Eep. 705. §157] Requests for Instructions. 359 each, side should be fully and fairly given, 14 and it is the duty of the court to explain the law arising upon the facts, 15 or to cover the substantial issues made by the evidence. 10 When it appears that the trial court was unwilling or thought it unnecessary to give any charge upon a certain point, a party is not called upon to ask instructions upon such point, 17 and the failure to make a request is not a waiver of the right to have the case fully presented to the Washington. State v. Myers, 8 Wash. 177, 35 Pao. 580,' 756. Under Mo. Rev. St. 1909, §5231, the court must instruct in writing ou all questions of law arising in a criminal case, whether requested or not. State v. Bidstrup, 237 Mo. 273. 14 — Freeman v. Hamilton, 74 6a. 318. 15— In North Carolina, Code, § 413 (now Pell's Rev. of 1908, §535), expressly requires the court to ex- plain the law arising upon the facts. Some charge is necessary. State v. Boyle, 104 N. C. 820; Phifer v. Alex- ander, 97 N. C. 335. Where the cause of action is based upon an illegal or immoral consider- ation, it is the duty of the court, of its own motion, to .instruct the jury that the plaintiff cannot recover, and a failure to do so is ground for a new trial, because the court will not en- force such claims, even if the par- ties do not object. Viser v. Ber- trand, 14 Ark. 267. In an action of criminal conversa- tion, where it appeared that the husband had connived at the inter- course, a failure of the court to ap- ply the rule that such connivance is a bar to the action is ground for reversal, even in the absence of a request, because in such ease the real question in issue has not been deter- mined. 1 Bunnell v. Greathead, 49 Barb. (N. Y.) 106. 16 — ' ' The law of the case must be given to the jury to the extent of covering the substantial issues made by the evidence," Central R. Co. v. Harris, 76 Ga. 502, and fairly pre- senting the case to the jury. Phin- ney v. Bronson, 43 Kan. 451, 23 Pac. 624. "In a trial by a jury, it is the duty of the court to instruct the jury on questions of law which he deems applicable to the case as made by the pleadings and evidence. ' ' Douglass v. Geiler, 32 Kan. 499, 4 Pac. 1039. "It is the duty of the trial court to submit to the jury all questions of fact arising under the pleadings upon which evidence is introduced on the trial." Upton v. Paxton, 72 Iowa 299. And see Emerson v. State, 83 Neb. 663; Reed v. State, 3 Okla. Cr. Rep. 16, 103 Pac. 1070. Where issue of self-defense is raised the court should instruct on it, and failure to do so is error, even though no request for such charge was made. Moran v. Martinson, 164 Iowa 712. Failure to request instruction on measure of damages does not relieve trial court of duty of correctly stat- ing measure. Lexington & E. R. Co. v. Crawford, 155 Ky, 723. 17— International & G. N. R. Co. v. Underwood, 64 Tex. 463. 360 Instructions to Juries. [§157 jury by instructions as to all ultimate questions necessarily inherent in it. 18 But an entire failure to state the law to the jury is to be distinguished from an omission to instruct on some particu- lar phase of the case, and such entire failure has been held to have the effect of submitting to the jury the determination not only of the facts but also of the law. 19 - It is also to be noted that the court is not required to instruct as to a rule of law not necessary for the correct determination of the case, 20 and, if the instructions given fairly and substantially cover the issues, a failure to give a particular instruction is not error, in the absence of a request. If a party desires further and more specific in- 18 — Soderburg v. Chicago, St. P., M. & O. By. Co., — Iowa — , 149 N. W. 82. 19— York Park Bldg. Ass'n v. Barnes, 39 Neb. 834. "In Manufacturing Co. v. Shiley, 15 Neb. 109, it was said: 'It is un- doubtedly the duty of the judge pre- siding at a trial to instruct the jury upon the law of the case which is to be observed by them; and should a case arise in which it shall appear from the record that the jury has taken a wrong view of the law ap- plicable to the case, and where the judge has failed to instruct them, whether requested by the counsel or not, this court would not hesitate to grant a new trial.' ' ' The same principle was substan- tially announced in C. Aultman & Co. v. Martin, 37 Neb. 826. An entire failure to instruct the jury in regard to the law of the case is very differ- ent from an omission to instruct in regard to some particular phase of the case,' or some particular ques- tion arising upon the trial. In the latter case a proper instruction upon the subject must be requested before error can be predicated upon a fail- ure to instruct; but the law imposes upon the court the duty of stating to the jury the law applicable to the case, and an entire failure to state the law to the jury has the effect of submitting to the jury the determi- nation, not only of facts, but of the law. In this case there was a total failure to instruct the jury upon the law of the case. This would not be prejudicially erroneous if it were ap- parent that the jury had come to a correct conclusion (Manufacturing Co. v. Shiley, ante) ; but the error is prejudicial if it is apparent that- the jury has taken a wrong view of the law. We must therefore examine the record in order to determine that question." York Park Bldg. Ass'n v. Barnes, 39 Neb. 834. 20 — Where an instruction as to a certain rule of law was not asked for, the failure of the court to give such instruction cannot be com- plained of if an instruction upon such rule was not necessary for the correct determination of the case. Deere v. Wolf, 77 Iowa 115. See also, State v. Dean, 148 Iowa 566. §157] Requests for Instructions. 361 structions, he must request tliem, or lie will not be heard to complain. 21 Accordingly, under a statute requiring the court to in- struct whether requested or not, it has been held not reversible error to fail to instruct on collateral questions in the absence of a request. 22 As to the effect of the general rule it may be said that, a failure to instruct the jury will be deemed to be harmless error where, upon a general view of the whole case, the verdict seems to be right, but it will be reversible error if the verdict appears to be wrong. 23 "A judge is not bound to charge upon all the points in a case, — he may be silent, unless called on by one of the parties to give his opin- ion on a question of law; but where he passes over one point, which is preliminary, to get at another, which could not fairly arise until the first is disposed of, it is error." Mc- Neill v. Massey, 10 N. C. 91. 21 — California. People v. Oppen- heimer, 156 Cal. 733, 106 Pac. 74; People v. Byrnes, 30 Cal. 206. Connecticut. State v. Campbell, 82 Conn. 671, 135 Am. St. Rep. 293, 18 Ann. Cas. 236. , Georgia. Brooks v. State, 134 Ga. 784; Fortson v. Mikell, 97 Ga. 336. Iowa. State v. Helvin, 65 Iowa 289. Kansas. State, v. Miller, 83 Kan. 410, 111 Pac. 437; State v. Pfefferle, 36 Kan. 90; Douglass v. Geiler, 32 Kan. 499, 4 Pac. 1039. Michigan. People v. Dumas, 161 Mich. 45. Missouri. State v. Nickens, 122 Mo. 607; State v. Brooks, 92 Mo. 542; State v. Leeper, 78 Mo. 470; State v. Kilgore, 70 Mo. 546; State v. Baldwin, 56 Mo. App. 423. Nebraska. Carleton v. State, 43 Neb. 402; Housh v. State, 43 Neb. 163; Hill v. State, 42 Neb. 503; Ger- man Nat. Bank of Hastings v. Leon- ard, 40 Neb. 676; York Park Bldg. Ass'n v. Barnes, 39 Neb. 834; Sioux City & P. R. Co. v. Finlayson, 16 Neb. 578, 49 Am. Rep. 724n. North Dakota. State v. Fleming, 20 N. D. 105. South Dakota. State v. Colvin, 24 S. D. 567. Texas. Bramlette v. State, 21 Tex. App. 611, 57' Am. Rep. 622; Austin v: State, 57 Tex. Cr. App. 611; Crane v. State, 57 Tex. Cr. App. 476; Marshall v. State, 37 Tex. Cr. App. 450. Vermont. Howland v. Day, 56 Vt. 324, 48 Am. Rep. 791; Walker v. Wait, 50 Vt. 668. See also, § 161, post, ' ' Where insuf- ficient instructions are given." 22— Missouri Rev. St. 1909, § 5231. State v. Harris, 232 Mo. 317. 23— State v. Helvin, 65 Iowa 289; State v. Brainard, 25 Iowa 572; Owen v. Owen, 22 Iowa 270; York Park Bldg. Ass'n v. Barnes, 39 Neb. 834; Sandwich Mfg. Co. v. Shiley, 15 Neb. 109; Honeycutt v. State, 8 Baxt. (Tenn.) 372; Good v. State, 1 Lea (Tenn.) 293; Gentry v. State, 25 Tex. App. 614; Pitts v. State (Tex. Cr. App.), 24 S. W. 896. 362 Instructions to Juries. [§158 § 158. Same — Criminal cases. Under the rules referred to in the preceding section the instructions in criminal cases must go to the extent of fairly presenting the case to the jury. 24 The judge must submit such principles of law as may be applicable to the case, 25 and it has been held the duty of 24— State v. Winters, 81 Kan. 414, 105 Pac. 516; State v. Pfefferle, 36 Kan. 90, 12 Pac. 406; State v. Shenkle, 36 Kan. 43, 12 Pac. 309. 25 — Westbrook v. State, 133 Ga. 578, 26 L. R. A. (N. S.) 591, 18 Ann. Oas. 295; Pace v. State, 58 Tex. Or. App. 90. "It is the duty of the judge [in criminal cases] to declare to the jury what the law is, with its exceptions and qualifications, and then to state, hypothetically, that if certain facts, which constitute the offense, are proved to their satisfac- tion, they will find the defendant guilty; otherwise, they will acquit him." Keener v. State, 18 Ga. 194. " It is the duty of the trial court to submit to the jury, by way of proper instructions, such principles of law as may be applicable to the case on trial as it appears from the evidence, and also such principles as should be applied to witnesses who are interested in the result, or whose testimony should be weighed with special care and caution as accom- plices. But it is not proper to dis- cuss the policy of using such wit- nesses. This should be left to the counsel in the argument." Long v. State, 23 Neb. 33. "It is the duty of the court to explain to the jury the offense with which the defendant is charged, what acts constitute it, and explain or define the words used in the statute prescribing the offense." More than this is not necessary by way of defi- nition. State v. Clark, 78 Iowa 492. And see State v. Dean, 148 Iowa 566, as to necessity of instructing concerning included offenses. In a trial for forgery, a failure by the court to give instructions re- specting the law applicable to the offense, and to a certain line of de- fense, of which there was sufficient evidence to require it to be consid- ered by the jury, though no instruc- tions were asked by the counsel for defendant, was sufficient to warrant a reversal, the court saying that, although the court below is not bound to give instructions on its own motion where those asked by counsel are sufficient, yet, when they are de- fective or insufficient, the law com- plicated, and the offense of a highly criminal character, the court should point out the controverted questions of fact, and state the law applicable thereto. State v. Brainard, 25 Iowa 572. North Carolina. As to the con- struction and application of Ni C. Code, §413 (now Pell's .Rev. of 1908, § 535), requiring the court to "state in a plain and correct man- ner the evidence given in the case, and declare and explain the law aris- ing thereon," see the following cases: State v. Brady, 107 N. C. 822; State v. Pritehett, 106 N. C. 667; State v. Boyle, 104 N. C. 820; Phifer v. Alexander, 97 N. C. 335; Holly v. Holly, 94 N. C. 100; State v. Rogers, 93 N. C. 523; State §158] Bequests for Instructions. 363 the judge to instruct that the jury are the judges of the facts, 26 to instruct as to the different degrees of crime, 27 v. Jones, 87 N. C. 547; State v. Mat- thews, 78 N. C. 523; State v. Dun- lop, 65 N. C. 292; Bailey v. Poole, 35 N. C. 404; State v. Moses, 13 N. C. 452; State v. Morris, 10 N. C. 391. "A charge to the jury, in which the judge deals in generalities and abstract propositions of law (merely reading 'headnotes' of reported cases), without making any applica- tion of them to the facts of the case, does not meet the requirements of the statute, and furnishes sufficient grounds for a new trial. He should not recapitulate the evidence in de- tail, but eliminate the material facts, array the state of facts on both sides, and apply the principles of law to each, that the jury may decide the case according to the credibility of the witnesses and the weight of the evidence." State v. 'Jones, 87 N. 0. 547. 26 — A conviction of felony will be reversed for failure to instruct the jury that they are the exclusive judges of the facts proved, and of the weight to be given to the testi- mony. Barbee v. State, 23 Tex. App. 199. 27 — Murder. The court must instruct as to all the different degrees of murder to which the evidence is applicable. State v. Palmer, 88 Mo. 572; State v. Banks, 73 Mo. 592; State v. Bran-' stetter, 65 Mo. 155. But see Williams v. State, 3 Heisk. (Tenn.) 379. "Failure to define murder in the second degree, in a case where the jury, upon the evidence, might have found the defendant guilty of the lesser offense, will be cause for re- versal, whether the instructions were asked or not." Sanders v. State, 41 Tex. 306. "Where, upon a trial for murder, there was conflicting evidence as to the circumstances immediately ante- cedent to the commission, which, in connection with the other evidence, was important with reference to the degree of offense of which the ac- cused was guilty, it was the duty of the judge to have instructed the jury distinctly as to the degrees of mur- der, and to have defined what the law means by express malice and implied malice; in such manner that a jury of ordinary intelligence would be enabled to comprehend the dis- tinction between the two kinds of malice. ' ' Villareal v. State, 26 Tex. 107. Rape. "In Ray v. State (1871) cited in 3 Heisk. 379, note, the indictment contained two counts, — one for rape, and the other for an assault with in- tent to commit rape, — and the ver- dict was that the defendant was guilty of rape, which was sustained by proof. The court held that the failure of the judge to charge the law relating to the offense in the sec- ond count was not reversible error." Parham v. State, 10 Lea (Tenn.) 502. Mayhem. On an indictment for mayhem, where the evidence tends to show a simple assault and battery, it is error for the court to neglect to in- struct as to the latter offense, and the error is not waived by the de- fendant 's failing to request such an instruction, or to except to its omis- sion. State v. Cody, 18 Ore. 506, 23 Pac. 891. 364 Instructions to Juries. [§158 or as to defenses, such as alibi, 28 insanity, 29 or self-defense. 30 Also, it has been held the duty of the court to instruct as to various presumptions, such as the presumption of inno- cence, 31 the presumptions as to capacity to commit a 28 — Under a statute making it the duty of the court to instruct the jury on all questions of law arising in the case, where there is evidence in a criminal ease tending to prove .an alibi, an instruction on that sub- ject must be given, whether request- ed by defendant or not. State v. Taylor, 118 Mo. 153. In a prosecution for a misdemea- nor, before defendant can be heard to complain of an omission to charge an alibi, he must have prepared and presented a. charge to the court ou alibi, and, on the refusal of the court to give such charge, he must have saved his bill of exceptions thereto. Lyon v. State (Tex. Gr. App.), 34 S. W. 947. "It is settled by repeated deci- sions in this state that the defense of alibi is- sufficiently embraced in a general charge to the effect that a defendant is presumed by law to be innocent until his guilt is established by competent evidence beyond a, rea- sonable doubt, where no additional instruction is requested, more ex- plicitly amplifying the law upon that subject." Oxford v. State, 32 Tex. Cr. App. 272. ' 29 — Where there is evidence tend- ing to establish the defense of insan- ity, the court should give a direct, positive and affirmative instruction uponinsanity as a defense, and should tell the jury what-the statute declares, — that ' ' no act done in a state of in- sanity can be punished as an of- fense." Smith v. State, 19 Tex. App. 96. 30 — Where the evidence tends to show that defendant charged with murder acted in self-defense, the jury should be fully charged in reference to that subject. State v. Donahoe, 78 Iowa 486; Ashworth v. State, 19 Tex. App. 182; Sterling v. State, 15 Tex. App. 249; Jackson v. State, 15 Tex. App. 84; King v. State, 13 Tex. App. 277; North . v. State, 12 Tex. App. Ill; Kemp v. State, 11 Tex. App. 174; Guffee v. State, 8 Tex. App. 277; -Poster v. State, 8 Tex. App. 248; Edwards v. State, 5 Tex. App. 593. ' ' Where, on trial for murder, there is proof that deceased made threats against defendant, some of which were communicated to him, and there is proof also tending to show that deceased was a' dangerous man, and brought about the difficulty, and was in fault at time of killing, the failure of the court to charge the law ap- plicable to such threats is an error ■ equivalent to the affirmative injury of an erroneous charge, and this court will reverse for such omission in the charge, though no further in- structions were asked." Potter v. State, 85 Tenn. 88. 31 — "The court should have charged the jury that the respondent was presumed to be innocent until proved guilty. It is claimed that the court charged that the jury must find that all the material facts were proved beyond a reasonable doubt, and that should be held sufficient. There is a difference between in- nocence and doubtful innocence. Neither, it is true, will allow a con- viction, but the presumption abides §158] Requests fob Instructions; 365 crime, 32 or the presumption arising from refusal to testify. 33 Usually an instruction limiting the effect of evidence should be given, 34 but the court is not bound to instruct as to collateral matters, such as the effect of impeaching testimony, 35 and it has been held unnecessary to instruct as to the good character of a defendant. 36 If additional instructions as to reasonable doubt are desired, they should be requested. 37 instruct the jury upon the law, the failure of the court to do so, in the absence of a request, is not error, with the accused from the beginning, and is alone a sufficient defense until overthrown by proof. This is not the impression with many who are called to act as jurors, as I presume has been found to be the experience of most trial lawyers; but the fact that a person has been brought to the bar of the court charged with crime, and asked to answer, causes him not unfrequently to be regarded by the average juror from the first with suspicion amounting almost to a presumption of guilt, and hence the necessity for the charge omitted in this case. It should have been given by the court, although no re- quest therefor was made by coun- sel." People v. Macard, 73 Mich. 25. 32 — The court must instruct as to the presumptions of legal capacity of children to commit a crime, where the evidence raises the question. Heilman v. Com., 84 Ky. 461. 33 — Where the statute provides that" "it shall be the duty of the court to instruct the jury that no inference of guilt shall .arise against -the accused if he fail or refuse to testify as a witness in his own be- half," the omission to so instruct is reversible error, though counsel asks for specific instruction, and fails to ask for an instruction on the effect of failure to testify. In case of such a statute, the general rule that, where the law requires the court to does not apply. State v. Myers, 8 Wash. 177, 35 Pac. 580, 756. 34 — Where ~ testimony as to other and different offenses is admitted, the judge, whether requested or not, should, in his charge, limit the evi- dence to the purpose for which it was admitted, viz.: the impeachment of the credibility of defendant. War- ren v. State, 33 Tex. Cr. App. 502; Sexton v. State, 33 Tex. Cr. App. 416. But this rule does not-apply to, proof of a former indictment of a witness who is not a defendant. Mat- kins v. State, 33 Tex. Cr. App. 605. 35 — The court is not bound to in- struct as to the effect of impeaching testimony, in the absence of a re- quest, this being a collateral matter. State v. Kilgore, 70 Mo. 546, distin- guishing State v. Branstetter, 65 Mo. 149. 36 — The tria^ court is not bound, unless requested, to instruct the jury as to the legal effect of evi- dence offered by defendant to estab- lish his general reputation as a peaceable and quiet citizen. State v. Nickens, 122 Mo. 607; State v. Nu- gent, 71 Mo. 136. 37 — "The court instructed the jury that, before they convicted de- fendant, they ought to be satisfied of his guilt beyond a reasonable 366 Instructions to Jueies. [§159 § 159. Rule in Texas. In Texas, although the earlier cases hold in effect that it would be reversible error to fail to give a distinct and affirmative presentation of the issues arising upon the evi- dence in a criminal case, even though special charges are. not requested, the holding under the later statutes is that such would not be the case unless special charges are requested. 38 A party is entitled, when he requests it, to have the facts establishing his cause of action or ground of defense and the law applicable to them affirmatively stated to the jury. 30 In felony cases it is the duty of the court whether properly requested or not to instruct the jury fully on all questions of law arising in the case, 40 but in misdemeanor eases the Tex. App. 57; Jackson v. State, 15 Tex. App. 84; Greta v. State, 9 Tex. App. 434; Reynolds v. State, 8 Tex. App. 412; Smith v. State, 7 Tex. App. 414;' Bobinson v. State, 5 Tex. App. 519; Curry v. State, 4 Tex. App. 574; Wasson v. State, 3 Tex. App. 474; Lister v. State, 3 Tex. App. ' 18; Jenkins v. State, 1 Tex. App. 346; Jobe v. /State, 1 Tex. App. 186; Miers v. State, 34 Tex. Cr. App. 161, 53 Am. St. Eep. 705; Warren v. State, 33 Tex. Cr. App. 502; Sexton v. State, 33 Tex. Cr. App. 416; Moore v. State (Tex. Cr. App.), 33 S. W. 980. Contra, Greenwood v. State, 35 Tex. 587. Though in every case of felony the court is required by statute to give a written charge, whether asked by the parties or not, yet it is only necessary for the court, to give such instructions as are applicable to every legitimate deduction which the jury may draw from the evidence. Bishop v. State, 43 Tex. 391; Daw- son v. State, 33 Tex. 491; Johnson v. State, 27 Tex. 758; Curry v. State, 4 Tex. App. 574; Noland v. State, 3 doubt. Held, that it was not for the defendant to complain that the court failed to add that such doubt ought to be substantial doubt touch- ing his guilt, and not a mere possibility of his innocence. If de- fendant desired this addition to the instruction, he should have asked for it." State v. Leeper, 78 Mo. 470. Where no special charge was asked applying the doctrine of reasonable doubt to any particular fact, and the circumstances do not call for any special charge relating thereto, a cor- rect general charge on reasonable doubt is sufficient. Carson v. State, 34 Tex. Cr. App. 342. 38— Davis v. State, 63 Tex. Cr. App. 484. See also, cases cited in note 13, § 157, ante. 39 — Lyon v. Bedgood, 54 Tex. Civ. App. 19. 40— Bishop v. State, 43 Tex. 390; Sanders v. State, 41 Tex. 306; Ful- cher v. State, 41 Tex. 233; Maria v. State, 28 Tex. 698; Villareal v. State, 26 Tex. 107; Barbee v. State, 23 Tex. App. 199; Bell v. State, 21 Tex. App. 270; White v. State, 18 §160] Requests fob Instructions. 367 court will not reverse for the failure to instruct unless a charge is requested. 41 § 160. Rule in Mississippi. Under the system of judicial procedure in Mississippi it is not in the province of the judge to give instructions to the jury unless one of the parties request him to do so and present him in writing the desired instruction. He is not permitted to instruct the jury at his own instance. 42 Accordingly, the giving of even a correct instruction, in the absence of a request, is reversible error, 43 but where the court is requested to charge upon a certain point, the court is not confined to merely giving or refusing the identi- cal charge asked, but may modify it, or may refuse it, and give another instruction materially different. 44 Tex. App. 598; Thrasher v. State, 3 Tex. App. 281; Lister, v. State, 3 Tex. App. 18; Bronson v. State, 2 Tex. App. 46; Holden v. State, 1 Tex. App. 226; Jobe v. State, 1 Tex. App. 186. 41 — Under Texas Code Cr. Proc, art. 719. Robey v. State,. — Tex. Cr. App. — , 163 S. W. 713; WiHingham v. State, 62 Tex. Cr. App. 55. In misdemeanor cases where no re- quest is made, the court is not re- quired to give a charge to the jury. (White's Ann. Code Cr. Proc, art. 719.) Sloan v. State, — Tex. Cr. App. — , 170 S. W. 156; Brunk v. State, 60 Tex. Cr. App. 263; Hilcher v. State, 60 Tex. Cr. App. 180. See also, Davidson v. State, 27 Tex. App. 262; Sparks v. State, 23 Tex. App. 447; Porter v. State, 1 Tex. App. 477; Lyon v. State (Tex. Cr. App.), 34 S. W. 947; Garrison v. State, 54 Tex. Cr. App. 600; Hurley v. State, 36 Tex. Cr. App. 73; Lucio v. State, 35 Tex. Cr. App. 320; Waechter v. State, 34 Tex. Cr. App. 297. 42 — Johnson v. State, — Miss. — , 63 So. 338. By statute the giving of instruc- tions is prohibited, in the absence of a request for instructions. Dixon v. State, — Miss. — , 64 So. 468; James v. State, — Miss. — , 63 So. 669; Bangs v. State, 61 Miss. 363; Stewart v. State, 50 Miss. 587; Archer v. Sinclair, 49 Miss. 343; Edwards v. State, 47 Miss. 581; Williams v. State, 32 Miss. 389, 66 Am. Dec. 615; Davis v. Tiernan, 2 How. (Miss.) 786; Montgomery v. Griffin, Walk. (Miss.) 453. The circuit jurlge has no power to originate in- dependent instructions not called for nor rendered necessary by those re- quested by counsel, "and he can- not evade this in a criminal case by handing the charge to the district attorney, who returns it requesting that it be given, which the judge does." Watkins v. State, 60 Miss. 323. 43— -Williams v. State, 32 Miss. 389, 66 Am. Dec. 615. 44 — Watkins v. State, 60 Miss. 323. The statute forbidding judges to charge the jury, except when re- quested, should receive a liberal eon-. 368 Instructions to Jubies. [§161 § 161. Necessity of request where insufficient instructions are given. As a general rule, if there is no error in the instructions given, it is necessary for a party to request a charge on points omitted. 45 struction in favor of the judge's power, and he is not bound by it to give the identical charge asked, or refuse it, but, when asked to charge on a certain point, may give an in- struction differing materially from the one asked. Carprew v. Canavan, 4 How. (Miss.) 370. "If the charges as asked are correct and pertinent, the safe practice is to give them as propounded. Upon the judge rests the responsibility of a correct state- ment of the law. He should not per- mit the jury to be confounded or misled by the language in which in- structions are couched." Archer V. Sinclair, 49 Miss. 343. 45 — California. O 'Connor v. United Eds. of San Francisco, 168 Cal. 43, 141 Pac. 809; Gomez v. Scanlan, 155 Cal. 528, 102 Pac. 12; People v. Hoosier, 24 Cal. App. 746, 142 Pac. 514. Georgia. Banks v. Bradwell, 140 Ga. 640. Illinois. People v. Lucas, 244 111. 603. ' Minnesota. Krulic v. Petcoff, 122 Minn. 517, Ann. Cas. 1914 D 1056n; Hanson v. Hellie, 107 Minn. 375. Missouri. Lampe v. United Eys. Co. of St. Louis, 177 Mo. App. 652; Knight v. Kansas City, 138 Mo. App. 153. Nebraska. Edwards & Bradford Lumber Co. v. Lamb, 95 Neb. 263. North Carolina. State v. Powell, 168 N. C. 134. South Carolina. Brown v. South- ern By., 83 S. C. 30; Berley v. West- ern U. Tel. Co., 82 S. C. 360. South Dakota. Grant v. Powers Dry Goods Co., 23 S. D. 195. Texas. Good v. Texas & P. By. Co., — Tex. Civ. App. — , 166 S. W. 670; Park v. Pyle, — Tex. Civ. App. — , 157 S. W. 445; Goldstein v. State, — Tex. Cr. App. — , 166 S. W. 149. The court need not instruct on particular points unless requested. People v. Lucas, 244 111. 603. "It is no ground of reversal that the court below omitted to give di- rections to the jury upon any points ' of law which might arise in the cause, where it was not requested by either party at the trial. It is sufficient that the court has given no erroneous directions. * * * The court cannot be presumed to do more in ordinary cases than to express its opinion upon questions which the parties themselves have raised on the trial." Pennock v. Dialogue, 2 Pet. (U. S.) 1, 7 L. Ed. 327. "When counsel want every detail of the law applicable to the facts gone over by the court, they should call attention to such minute matters. Unless they do so, the court may instruct, in gen- eral terms, on broad and controlling principles, and then stop." Moore v. Brown, 81 Ga. 10. "Good faith requires that a litigant who claims to be prejudiced by a ruling of the court shall at once call attention to the fact by apt language, to the end that, if an error has been committed, §161] Requests for Instructions. 369 An instruction must be requested if a more specific sub- mission of the issues is desired, 46 or if it is contended that the instructions should be more full, 47 or that the issues were not all covered, 48 and a party who does not request additional instructions cannot complain when the charge given was correct as far as it went. 49 it may be corrected or put in shape for review on the spot." Smith v. Matthews, 9 Misc. Rep. (N. Y.) 431. 46— Arkansas. C. H. Smith Tie & Timber Co. v. Weatherford, 92 Ark. 6. California. People v. Stirgios, 23 Cal. App. 48, 136 Pac. 957. Colorado. Burnside v. Peterson, 43 Colo. 382, 17 L. R. A. (N. S.) 76n, 96 Pac. 256. Indiana. Indianapolis & North- western Traction Co. v. Newby, 45 Ind. App. 540. Montana. Kirk v. Smith, 48 Mont. 489, 138 Pac. 1088. North- Carolina. Monds v. Town, of Dunn, 163 N. C. 108; Todd v. Mackie, 160 N. C. 352. North Dakota. Landis v. Fyles, 18 N. D. 587. South Carolina. Gossett v. West- ern U. Tel. Co., 95 S. C. 397. Texas. Guerra v. San Antonio Sewer Pipe Co., — Tex. Civ. App. — , 163 S. W. 669; Guinn v. Pecos & N. T. Ry. Co., — Tex. Civ. App. — , 142 S. W. 63; Galveston Electric Co. v. Dickey, 56 Tex. Civ. App. 490. Washington. O'Connor v. Slatter, 48 Wash. 493, 93 Pac. 1078. 47 — California. Townsend v. But- terfield, 168 Cal. 564, 143 Pac. 760. Florida. Johnson v. State, 55 Fla. 41. Indiana. Plummer v. Indianapolis Union R. Co., 56 Ind. App. 615. Iowa. State v. Brandenberger, 151 Iowa 197. Blashfield Vol. 1—24- North Carolina. State v. Robert- son, 166 N. C. 356; Brown v. South- ern R. Co., 165 N. C. 392. Pennsylvania. Fedorawicz v. Citi- zens ' Electric Illuminating Co., 246 Pa. 141. Texas. Missouri, K. & T. Ry. Co. of Texas v. Beasley, — Tex. Civ. App. — ,. 162 S. W. 950; Girtman v. State, — Tex. Cr. App. — , 164 S. W. 1008; Tyler v. State, — Tex. Cr. App. — , 150 S. W. 782. Wisconsin. Robinson v. City of Oconto, 154 Wis. 64. Where the defect in an instruc- tion results from the absence of full- ness in the charge, and it is not otherwise misleading, it is the duty of the complaining party to present and request a special charge covering the defect and the failure to do so deprives him of the right to a re- versal on appeal because of the de- fect. Missouri, K. & T. Ry. Co. of Texas v. Beasley, — Tex. Civ. App. — , 162 S. W. 950. 48 — Schramm y. P. J. Owens Lum- ber Co., -~- Tex. Civ. App. — , 163 S. W. 1016. See also, Savage v. Chi- cago & J. E. R. Co., 238 111. 392. 49— McMullen v. Harris, — Iowi — , 147 N. W. 164. A party cannot complain of the failure to give a certain instruction when he did not request the same. People v. Darr, 179 111. App. 130. When the charge of the court is correct and fairly submits the issue, so far as it goes, and one of the 370 Instructions to Jubies. [§161 An omission to instruct on any point, however material, is not assignable as error if there was no request to instruct upon it, 50 and ordinarily the court will not reverse for the failure to give instructions not asked unless it is satisfied that such failure has deprived defendant of a ia\r trial. 51 It is sufficient to sustain the verdict that no erroneous instructions were given. 52 In order to raise the question for review, the party must ask the particular instructions desired, and assign their refusal as error. 53 parties desires to have other aspects of the case presented to the jury for determination, special charges must be asked covering such points, and in the absence of such special request, it must be assumed that the general charge was satisfactory. Bee Candy Mfg. Co. v. Maibaum, — Tex. Civ. App. — , 158 S. W. 575. 50— Prick v. Wilson, 36 S. C. 65; Texas & P. B. Co. v. Volk, 151 U. S. 73, 38 L. Ed. 78; Mutual Life Ins. Co. v. Snyder, 93 U. S. (3 Otto) 393, 23 L. Ed. 887; Pennock v. Dia- logue, 2 Pet. (U. S.) 1, 1 L. Ed. 327; Armstrong v. Toler, 11 Wheat. (U. S.) 258, 6 L. Ed. 468. This rule is not affected by the statute, which declares that the error alleged need not be put in writing, and may be taken advantage of at any time, even on appeal. Terry v. Danville, M. & S. W. E. Co., 91 N.-C. 236. 51 — State v. Brandenberger, 151 Iowa 197. Omissions are not reversible error in the absence of requested correct charges. Selden-Breck Const. Co. v. Eelley, — Tex. Civ. App. — , 168 S. W. 985. 52 — Pennock v. Dialogue, 2 Pet. (XT. S.) 1, 7 L. Ed. 327, affirming 4 Wash. C. C. 538, Ped. Cas. No. 10941; Seabury v. Field, 1 McAll. (IT. S.) 60, Fed. Cas. No. 12575; United States v. Fourteen Packages of Pins, Gilp. (U. S.) 235, Fed. Cas. No. 15151. 53 — Georgia. White v. Hand, 76 Ga. 3. Indiana. Du Souchet v/. Duteher, 113 Ind. 249; Carver v. Carver; 97 Ind. 497; Ireland v. Emmerson, 93 Ind. 1, 47 Am. Bep. 364. Massachusetts. Beed v. Call, 5 Cush. 14. Nebraska. Barr v. City of Omaha, • 42 Neb. 341. New York. Hogan v. Cregan, 6 Bob. 138. North Carolina. Arey v. Stephen- son, 34 N. C. 34; Torrence v. Gra- ham, 18 N. C. 284. Oregon. Kearney v. Snodgrass, 12 Ore. 311, 7 Pac. 309. Texas. Freiberg v. Johnson, 71 Tex. 558; O'Neil v. Wills Point Bank, 67 Tex. 36; Powell v. Haley, 28 Tex. 52; Bowden v. Crow, 2 Tex. Civ. App. 591. A request for. proper instructions is necessary to raise the point that the instructions given were insuffi- cient. Alabama. Scully v. State, 39 Ala. 240. Arkansas. Brooks Medicine Co. v. §161] Requests fob Instructions. 371 The rule is well settled that it is not sufficient to merely Jeffries, 94 Ark. 575; White, v. McCracken, 60' Ark. 613. California. People v. Fice, 97 Cal. 459, 32 Pac. 531. Colorado. Sandberg v. Borstadt, 48 Colo. 96, 109 Pac. 419; Saint v. Guerrerio, 17 Colo. 448, 31 Am. St. Bep. 320, 30 Pac. 335. Florida. Lungren v. Brownlie, 22 Fla. 491. Georgia. Fortson v. Mikell, 97 Ga. 336. Illinois. Louisville, E. & St. L. Consol. B. Co. v. Spencer, 149 111. 97; Village of Hyde Park v. Wash- ington Ice Co., 117 111. 233; Sloan v. Lingafelter, 56 111. App. 320. Indiana. Cincinnati, I., St. L. & C. By. Co. v. Smock, 133 Ind. 411; Marshall v. State, 123 Ind. 128; Island Coal Co. v. Neal, 15 Ind. App. 15. Iowa. Boekwell v. Ketchum, 149 Iowa, 507; State v. Phipps, 95 Iowa 487; Dimmick v. Babcock, 92 Iowa 692; Mackie v. Central Bailroad of Iowa, 54 Iowa 540. v Kansas. Hoyt v. Dengler, 54 Kan. 309, 38 Pac. 260. Louisiana. State v. Scott, 12 La. Ann. 386. Maine. Hearn. v. Shaw, 72 Me. 187. Massachusetts. Corrigan v. Con- necticut Ins. Co., 122 Mass. 298. Michigan. MacDonald v. Freeman Mfg. Co., 160 Mich. 380; Little v. Williams, 107 Mich. 652. Minnesota. t Bowe v. Hyland, 44 Minn. 88. Mississippi. Edwards v. State, 47 Miss. 589. Missouri. Farmer v. Farmer, 129 Md. 530; Coleman v. Drane, 116 Mo. 387; Booker v. Southwest Missouri E. Co., 144 Mo. App. 273. Montana. Kelley v. Cable Co., 7 Mont. 70, 14 Pac. 633. Nebraska. Carter White Lead Co. v. Kinlin, 47 Neb. 409. Nevada. State v. Hing, 16 Nev. 307, New Hampshire. Moore v. Boss, 11 N. H. 547. New Jersey. Hetfield v. Dow, 27 N. J. Law 440. New Mexico. United States v. Chaves, 6 N. M. 180, 27 Pac. 489. New York. Sudlow v. Warshing, 108 N. Y. 520. Ohio. Boiling Mill Co. v. Corri- gan, 46 Ohio St. 283, 3 L. B. A. 385n, 15 Am. St. Bep. 596; Doll v. State, 45 Ohio St. 445. Oregon. Schoellhamer v. Bo- metsch, 26 Ore. 394, 38, Pac. 344. Pennsylvania. Brinser v. Longe- necker, 169 Pa. St. 51. South Carolina. Jones v. Spar- tanburg Herald Co., 44 S. C. 526. South Dakota. Lunschen v. Ul- lom, 25 S. D. 454. Tennessee. Bridges v. Vick, 2 Humph. 516; Butler v. State, 7 Baxt. 35. Texas. Gulf, C. & S. F. By. Co. v. Box, 81 Tex. 670; Hays v. Hays, 66 Tex. 606; Stephens v. Anderson (Tex. Civ. App.), 36 S. W. 1O00. Vermont. State v. Hanlon, 62 Vt. 334. Virginia. Crawford v. Morris, 5 Gratt. 90. Washington. McQuillan v. City of Seattle, 13 Wash. 600, 43 Pac. 893. West Virginia. State v. Donohoo, 372 Instructions to Juries. [§161 except to the charge of the court as given, — the additional instructions desired must be requested. 54 But the failure or refusal of the court, when asked, to give proper instructions to supply such omissions, is an error of law, and, if excepted to, constitutes a good cause for a new trial, 55 and where there is an omission in an 22 W. Va. 761; State v. Robinson, 20 W. Va. 713, 43 Am. Eep. 799. Wisconsin. Lueck v. Heisler, 87 Wis. 644. Wyoming. Bunce v. McMahon, 6 Wyo. 24, 42 Pae. 23. United States. Carter v. Carusi, 112 U. S. 478, 28 L. Ed. 820; Con- gress & E. Spring Co. v. Edgar, 99 U. S. 645, 25 L. Ed. 487. 54 — Arizona. Lenord v. State, 15 Ariz. 137, 137 Pae. 412. Georgia. Poullain v. Poullain, 79 Ga. 11. Indiana. Du Souchet v. Dutcher, 113 Ind. 249; Fitzgerald v. Goff, 99 Ind. 28, 40; Hodges v. State, 85 Ind. 561; Adams v. Stringer, 78 Ind. 175. Kansas. Byan v. Madden, 46 Kan. 245, 26 Pae. 245. Maine. Emery v. Vinall, 26 Me. 295. Nevada. State v. Hing, 16 Nev. 307. New York. People v. McLaughlin, 2 App. DiV. 419, 37 N. Y. Supp. 1005; , Hotchkins v. Hodge, 38 Barb. 117; Dows v. Bush, 28 Barb. 157. North Carolina. Gwaltney v. Scottish Carolina Timber Co., 115 N. C. 579. Ohio. Schryver v. Hawkes, 22 Ohio St. 308; Jones v. State, 20 Ohio 34; Wright v. Cincinnati St. By. Co., 9 Ohio Cir. Ct. B. 503, 2 Ohio Dec. 308. South Carolina. Caveny v. Neely, 43 S. C. 70. Texas. Davidson v. State, 27 Tex. App. 262; Work v. State, 3 Tex. App. 234; Eorrest v. State, 3 Tex. App. 232; Schell v. State, 2 Tex. App. 31; Goode v. State, 2 Tex. App. 520; Por- ter v. State, 1 Tex. App. 479; Poster v. State, 1 Tex. App. 363; Brown- ing v. State, 1 Tex. App. 96; Garner v. Butcher, 1 Posey, Unrep. Cas. 431; Freeman v. Nickels, — Tex. Civ. App. — , 125 S. W. 941; Missouri, K. & T. By. Co. v. Kirsehoffer (Tex. Civ. App.) 24 S. W. 577. Wisconsin. Newton v. Whitney, 77 Wis. 515; Lela v. Domaske, 48 Wis. 623; Tomlinson v. Wallace, 16 Wis. 224. Contra, Donahue v. Windsor County M. Fire Ins. Co., 56 Vt. 374. Where an instruction is mani* f estly erroneous, and is excepted to, it is not necessary for a party to ask to have it corrected by a proper charge; but "when a charge is not positively erroneous, but merely de- fective in not stating the law fully, as applicable to the case, then it is the duty of the party who is not satisfied with the charge to request an instruction curing the defect; otherwise, the objection will be con- sidered waived." Lenord v. State, 15 Ariz. 137, 137 Pae. 412; Missouri, K. & T. By. Co. v. Kirschoffer (Tex. Civ. App.), 24 S. W. 577. 55 — Blacketer v. House, 67 Ind. 414; Durant v. Fish, 40 Iowa 559; Pennock v. Dialogue, 2 Pet. (U. 8.) 1, 162] Requests foe Instructions. 373 instruction and two charges are asked to supply such omis- sion, one of them should be given. 56 An objection for failure to instruct cannot be raised for the first time on motion for a new trial, 57 or on appeal. 58 A mere promise of the judge to give an instruction upon a certain point will not excuse a party from requesting sucb instruction at the proper time, if he wishes it given. 59 § 162. Same — Illustrations. In accordance with the rules laid down in the preceding section, it is held that a party cannot complain that tbe instructions did not properly present his theory of the case, where he did not request an instruction covering the omission complained of; 60 and when the instructions given are abstractly correct, but it is claimed that there are excep- tions, qualifications or limitations to the general rule laid down, which should be given, a failure to state such excep- 7 L. Ed. 327. See also, § 184, post, "Necessity of giving requested in- structions. ' ' 56— Ft. Worth & R. G. Ry. Co. v. Jonas, — Tex. Civ. App. — , 166 S. W. 415. 57 — Lary y. Toung (Tex. Civ. App.), 27 S. W. 908. It is too late, after verdict, to object to the fail- ure to charge upon a particular mat- ter. Boon v. Murphy, 108 N. C. 187. 58 — Goldhammer v. Dyer, 7 Colo. App. 29, 42 Pac. 177; Hall v. Incor- porated Town of Manson, 90 Iowa 585; Burkitt v. Twyman (Tex. Civ. App.), 35 S. W. 421. 59— Carleton v. State, 43 Neb. 373; York Park Bldg. Ass'n v. Barnes, 39 Neb. 834; Avery v. New York Cent. & H. R. R. Co., 17 N. Y. St. Rep. 417, 2 N. Y. Supp. 101; Inter- national & G. N. R. Co. v. Smith (Tex. Sup.), 1 S. W. 565. See also, Louisville, N. A. & C. Ry. v. Hub- bard, 116 Ind. 193. 60— Village of Hyde Park v. Washington Ice Co., 117 HI. 233; Hitchcock v. Supreme Tent, K. M. W., 107 Mich. 391; Advertiser & Tribune Co. v. City of Detroit, 43 Mich. 120; Ward v. Ward, 37 Mich. 259; Hpwry v. Eppinger, 34 Mich. 35; Turner v. People, 33 Mich. 382, and cases cited; Texas & Pacific Coal Co. v. McWain, — Tex. Civ. App. — , 124 S. W. 202; Grant v. Armstrong, 55 Wash. 365, 104 Pac. 632. "It is the duty of counsel to ask instructions embodying their theory of the case, and, if they fail to do so, the court is not bound to embody the whole case in one instruction." State v. Haase, 6 Mo. App. 586. 374 Instructions to Juries. IS 162 tions, qualifications or limitations is not error in the absence of a request to do so. 61 The failure of the court to inform the jury that, they are the exclusive judges of the law and facts is not such error as will justify a judgment of reversal, unless defendant asks an instruction upon this point, 62 and the failure to give instructions requested, but overlooked, has been held not to be a good ground of exception. 63 61 — Alabama. Ivey 's Adm 'r v. Owens, 28 Ala. 648. Georgia. Malone v. State, 77 Ga. 767. Illinois. Bartlett v. Board of Ed- ucation of Freeport School Dist., 59 111. 364. Indiana. Wells v. Morrison, 91 Ind. 52; Beissner v. Oxley, 80 Ind. 580. Iowa. Gwinn v. Crawford, 42 Iowa 67; State v. Tweedy, 11 Iowa 350. Maine. Eaton v. New England Telegraph Co., 68 Me. 63. Michigan. Belmer v. Boyne City Tanning Co., 160 Mich. 669. Minnesota. MeKnight v. Chicago, M. & St. P. By. Co., 44 Minn. 141. Missouri. Johnston v. St. Louis & S. F, B. Co., 150 Mo. App. 304; Haymaker v. Adams, 1 Mo. App. 409. New York. Fasshender v. West- ern Transit Co., 26 N. Y. St. 112. Texas. Texas & Nj O. By. Co. v. Crowder, 70 Tex. 222; Gallagher v. Bowie, 66 Tex. 265. " If a party desires that the excep- tions to a general rule of law be stated in an instruction to a jury, he should, in general, ask the court so to do; but where the court states a legal proposition, and that the same is the rule 'except in cases I shall hereafter enumerate,' if the court afterwards undertakes to enu- merate the exceptions, he must state them all, and for a failure so to do the judgment will be reversed." Wells v. Morrison, 91 Ind. 52. The failure to state an exception to the general rule as to the burden of proof in actions' against carriers for injury to goods is not reversible error, where the charge was not ex- cepted to, and no request for a fur- ther charge was made. Fasshender v. Western Transit Co., 26 N. Y. St. 112. The court charged as follows: "If the jury believe 'from the evidence that M. was justly and honestly in- debted to B. the sum for which the judgment was rendered, * * * he had a right to prefer B. by confess- ing said judgment." Held that, if appellants desired that these instruc- tions should be qualified by adding, "if there are no distinctive badges of fraud to vitiate the transaction, ' ' they should have asked it. S,tock- well v. Byrne, 22 Ind. 6. 62— Keyes v. State, 122 Ind. 527. Merely omitting to charge, when not requested, that the jury are the judges of the facts and of the appli- cation of the law, is not reversible error. Butler v. State, 7 Baxt. (Tenn.) 35. 63 — Where a point on "which the court had been requested to charge §162] Requests fob Instructions. 375 Other illustrations of the necessity of requesting instruc- tions may be found in cases where it has been held not error to fail to instruct as to the existence of a contract, 04 its performance, 05 or construction, 60 or where the omission to charge as to false representations, 67 mental capacity of a was forgotten, but at the end of his charge the court asked the counsel on both sides if there was any other matter on which they wished instruc- tions, who both answered in the neg- ative, the omission was held not to be a good ground of exception." Gillespie v. Shuliberrier, 50 N. C. 157. Where a party requests a series of instructions, and the court fails to respond to all seriatim, but the at- tention of the court is not, at the close of the charge, called to any one or more of such series, although the counsel of the party are invited by the court to do so, if desired, the failure of the court in this respect is not regarded, in a» appellate court, as error, even if some of such instructions ought to be given. Hud- son v. Charleston, C. & C. E. Co. (C. C.) 55 Fed. 252. 64 — "Where the question' raised by the pleadings was whether there had been an express contract by a mother-in-law to pay her son-in-law, with whom she lived, for her board, and the court had charged the jury that she would not be liable to pay for such board, in the absence of an agreement, but had failed to instruct the jury that they should consider all the circumstances, for the pur- pose of determining whether or not an agreement should be implied or inferred therefrom," the failure to give additional and more explicit in- structions is not error, in the ab- sence of a request therefor. Austin v. Moe, 68 Wis. 458. 65 — ' ' It was proper for the trial court to submit to the jury the ques- tion whether or not the plaintiff, by reason of her temporary disability, failed to perform the contract of em- ployment on her part in any substan- tial manner; but inasmuch as de- fendant's counsel failed to make a specific request that the court so charge, his omission to submit that question to the jury cannot, for the ' purpose of this appeal, be assigned as error." Muller v. McKesson, 73 N. Y. 195, 29 Am! Eep. 123; Winchell v. Hicks, 18 N. Y. 559; Fisher v. Monroe, 16 Daly (N. Y.) 467. 66 — If a party desires the court to place a construction upon a eon- tract, he should ask for it. Barnett v. State, 100 Ind. 171; State Nat. Bank of Springfield v. Bennett, 8 Ind. App. 679. "If the presiding judge is not re- quested to give any instructions in reference to the nature and effect of a written instrument introduced in evidence at the trial, the omission to do so is no valid ground of excep- tions unless the liability of the, party is to be determined solely by the legal construction to be put upon it. ' ' Badger v. Bank of Cumber- land, 26 Me. 428. 67 — ' ' In an action on a promissory note given upon an exchange of horses, the jury were instructed that, if the plaintiffs, at the time of the 376 Instbuctions to Juries. [§162 person, 08 payment, 69 notice, 70 limitations 71 or adverse exchange, made false representations as to the soundness of their horse, upon which the defendant relied as true, and the horse received by the defendant was worth the most, the difference bet\veen the actual value of that horse and what would have been its value if the representations had been true should be deducted from the amount of the note. It was held that the plaintiffs, if they re- quested no instructions upon the hy- pothesis that the defects in that horse might have been ascertained by the defendant by the exercise of ordinary care and vigilance, had no ground of exception." Davis 'v. El- liott, 15 Gray (Mass.) 90. 68 — Where the evidence, in an action to set aside a conveyance, is such as to require a charge upon the nature and degree of mental capac- ity to make a valid conveyance, a request for a special instruction upon the mental capacity of the grantor must be made to render the failure to charge on the point error. Ber- ryman v. Schumaker, 67 Tex. 312. 69— Where, in an action to recover for services rendered, payment of part of the account is admitted, the court 's failure to- mention the sub- ject of payment in its charge is not error, where its attention is not called to the matter, and where no request is made. Crowell v. Truax, 94 Mich. 585, wherein the court said: "We think that error could not be predicated upon this, as. the jury could hardly overlook so plain a proposition as that payments should be deducted, when it was conceded Upon the trial." The failure to charge as to the presumption of pay- ment from lapse of time is not error, in the absence of a request to charge upon that point. Abrahams v. Kel- ly, 2 S. C. 237. 70 — Where the issue is whether or not the defendant purchased with notice of plaintiff's claim, a failure to instruct as to the law of construct- ive notice is not error, in the ab- sence of a request. Brotherton v. Weathersby, 73 Tex. 471. Where the court instructed that notice to a clerk would not be notice to his employer of certain facts, a failure to charge as to the effect of notice to » business manager is not error, in the absence of a request to charge upon that point. Brown v. Foster, 41 S. C. 118. Where the court charged that the case turned mainly upon the ques- tion of notice, but did not explain what amounted to notice, as applied to the facts in evidence, nor as to the legal effect of rumors as notice, such failure is not ground for a new trial, in the absence of a request. Street v. Lynch, 38 Ga. 631. 71 — The general rule that, when the court fails to charge on an issue, raised by the pleadings and evidence, the omission cannot be alleged as error unless a special charge cover- ing the point is asked, applies to the issue of the application of the stat- ute of limitations. Rackley v. Fowl- kes (Tex. Civ. App.), 36 S. W. 75. "The defendant pleaded the stat- ute of limitations, and the testimony was such as to raise the issue. The court charged the jury that 'the de- fendant had pleaded the statute of limitations in bar of plaintiff's ac- tion, among other defenses,' and did not further instruct upon that sub- ject. No instruction was asked. §163] Requests for Instructions. 377 possession 72 has been held not to constitute error. § 163. Same — Instructions defective in form. In the absence of a request for proper instructions it is not ground for reversal that the instructions given are gen- eral, indefinite, vague or uncertain, 73 or that they are Held, that it was the duty of plaintiff to ask further instructions, if he desired, and, having failed to do so, he cannot complain on appeal of the defective charge." Hooker v. Day, 80 Tex. 529. 72 — Where adverse possession is an issue, the failure of the court to define ' ' adverse possession, ' ' and to state that the running of the statute of limitations would be interrupted by the filing of the suit, is not error, in the absence of a request to charge upon these points. Robinson v. Mc- Iver (Tex. Civ. App.), 23 S. W. 915. Where adverse possession of un- cultivated and uninclosed land is re- lied upon, a failure to instruct that the extent of possession should be denoted by natural or artificial boundaries has been held not error, in the absence of a request for such an instruction. In this case, how- ever, no injury could have resulted from the omission. Wood v. Figard, 28 Pa. St. 403. ' 73 — Alabama. Pulliam v. New- berry 's Adm'r, 41 Ala. 168; Jones v.. Fort, 36 Ala. 449; State v. Brinyea, 5 Ala. 241. California. People v. Olsen, 80 Cal. 122, 22 Pac. 125. Georgia. Johnson v. State, 14 Ga. 55. Illinois. Savage v. Chicago & J. E. R. Co., 238 111. 392. Indiana. Hallock v. Iglehart, 30 Ind; 327; Stockwell v. Byrne, 22 Ind. 6; Morningstar v. Hardwick, 3 Ind. App. 431; Gastlin v. Weeks, 2 Ind. App. 222; Eichel v. Senhenn, 2 Ind. App. 208. Iowa. State v. Jelinek, 95 Iowa 420. Kansas. State v. Falk, 46 Kan. 498, 26 Pac. 1023. Minnesota. Clapp v. Minneapolis & St. L. By. Co., 36 Minn. 6, 1 Am. St. Rep. 629; Warner v. Myrick, 16 Minn. 91. Missouri. State v. Reynolds, — Mo. — , 165 S. W. 729; Murphy v. Wabash. R. Co., 228 Mo. 56. Nebraska. Sheridan Coal Co. v. C. W. Hull Co., 87 Neb. 117; Sioux City, etc., R. Co. v. Brown, 13 Neb. 317. Pennsylvania. Fife v. Com., 29 Pa. St. 429; Weiss v. Swift & Co., 36 Pa. Super. Ct. 376. Texas. Northern Texas Traction Co. v. Hunt, 54 Tex. Civ. App. 415; Rousel v. Stanger, 73 Tex. 670. Wisconsin. Page v. Town of Sump- ter, 53 Wis. 652; Lela v. Domaske, 48 Wis. 623. The mere fact that an instruction is obscure is not ground for reversal. The party complaining must ask an explanatory or qualifying charge. Pulliam v. Newberry's Adm'r, 41 Ala. 168; Jones v. Fort, 36 Ala. 449; State v. Brinyea, 5 Ala. 241; John- son v. State, 14 Ga. 55; Stockwell v. Byrne, 22 Ind. 6; Fife v. Com., 29 Pa. St. 429. Where an instruction is too gen- 378 Instructions to Juries. [§163 ambiguous. 74 So, also, a request for instructions is neces- sary where the instructions given are verbally inaccurate, 75 or contain unnecessary verbiage, 78 or where the charge given contains words or terms which should be explained. 77 eral, a requested instruction limiting the effect of the charge so as not to be misunderstood is necessary. State v. Eeynolds, — Mo. — , 165 S. W. 729. 74 — A merely ambiguous instruc- tion is not ground for reversal, in the absence of a request for proper instructions correcting the defect: Alabama. Sharp v. Burns, 35 Ala. 663. Maine. Stratton v. Staples, 59 Me. 94. Minnesota. McCormick v. Louden, 64 Minn. 509; Boyle v. Louden, 64 Minn. 509. Oregon. Schoellhamer v. Bo- metsch, 26 Ore. 394, 38 Pac. 344; Kearney v. Snodgras, 12 Ore. 311, 7 Pac. 309. Washington. McQuillan v. City of Seattle, 13 Wash. 600, 43 Pac. 893; Box v. Kelso, 5 Wash. 360. United. States. Schuylkill & Dau- phin Imp. & B. Co. v. Munson, 14 Wall. 442, 20 L. Ed. 867. "Where a charge is merely ambiguous, a party dissatisfied with it ought, before the jury leave the bar, to ask the court to make it clear. He should not ac- quiesce in the correctness of the in- struction, take, his chance with a jury, and, after the verdict is against him, claim the benefit of the ambigu- ity on error. ' ' Schuylkill & Dauphin Imp. & B. Co. v. Munson, 14 Wall. (U. S.) 442, 20 L. Ed. 867. 75 — If a charge is verbally inaccu- rate plaintiff should request a correct charge on the point in issue and when he does not do so, he cannot complain on appeal. McKee v. Gar- ner, — Tex. Civ. App. — , 168 S. W. 1031. 76— Jf a party desires to have de- fects in instructions cured, as where they contain unnecessary verbiage, he should seek to accomplish that result by asking properly prepared special cliarges correcting such de- fects. La Grange & Lockhart Com- press Co. v. Hart, — Tex. Civ. App. — , 169 S. W. 373. 77 — "A mere defect in the charge, in failing to explain an expression 1 used in it, cannot avail an appellant who did not ask an appropriate in- struction at the trial." Texas & P. By. Co. v. O'Donnell, 58 Tex. 27. Where a charge on the issue of adverse possession was not erroneous, but only defective, in not defining "adverse possession," plaintiff can- not assign error, in the absence of a request for an instruction curing the omission. Bobinson v. Melver (Tex. Civ. App..), 23 S. W. 915. If an explanation of what consti- tutes a legal tenancy is desired, it must be requested. Crail v. Crail, 6 Pa. 480. An instruction defining "legal services" should be requested. In re Lutz's Estate, 175 Mo. App. 427. A failure to charge specially as to the meaning of "probable cause" in an action for malicious prosecu- tion cannot be assigned as error in the absence of a request. Peterson v. Toner, 80 Mich. 350; Lueck v. Heisler, 87 Wis. 644. §164] Requests fob Instetjctions. 379 But under some statutes when an instruction is defective in form or phraseology it becomes the duty of the court to give a proper instruction covering the point. 78 § 164. Misleading instructions. The mere fact that the charge, though correct, might mis- lead the jury or has a tendency to mislead is not reversible error in the absence of a request for a proper instruction, 7 ", but where the almost necessary effect of the charge is to mislead the jury, or where the result shows that the jury were probably misled, it seems that the judgment should be reversed. 80 In many cases the general rule that a request is necessary is stated with the proviso that the instructions given were not misleading. 81 78— Under Mo. Rev. St. 1909, § 5231,! requiring the court to in- struct whether requested or not, if an instruction is refused because de- fective in form or phraseology, it be- comes the duty of the court to give a proper instruction covering the point. State v. Harris, 232 Mo. 317. 79 — Alabama. Green v. Southern States Lumber Co., 163 Ala. 511; Towns v. State, 111 Ala. 1; Durrett v. State, 62 Ala. 434; Abraham v. Nunn, 42 Ala. 57; Fitzpatrick v. Hays, 36 Ala. 684; Birmingham Rail- way, Light & Power Co. v. Cockrell, 10 Ala. App. 578, aDd see cases in this note, post. Indiana. Jones v. State, 49 Ind. 549. Iowa. Churchill v. Gronewig, 81 Iowa 449; Deere v. Wolf, 77 Iowa 115; Gwinn v. Crawford, 42 Iowa 63. Louisiana. Milne v. Pontchartrain R. Co., 9 La. 257. Michigan. Chapman v. Strong, 162 Mich. 623. Missouri. Hyde v. St. Louis Book & News Co., 32 Mo. App. 298. If an instruction, is capable of mis- leading interpretation, an explana- tory charge should be requested. Gilley v. Denman, 185 Ala. 561; Hamrick v. Shipp, 169 Ala. 171; Bir- mingham Railway, Light & Power Co: v. Friedman, — A^Ja. — , 65 So. 939; Louisville & N. R. Co. v. Mason, • 10 Ala. App. 263. A charge to the jury, asserting that an equal distribution of the testator's property among his chil- dren "is no legal reason why it should be considered an irrational act," is not erroneous, though it may be calculated to mislead the jury. Explanatory charges should have been asked. Hughes v. Hughes ' Ex'r, 31 Ala. 519. 80— Towns v. State, 111 Ala. 1; Kenan v. Holloway, 16 Ala. 53, 50 Am. Dec. 162; Towns v. Riddle, 2 Ala. 694; Toulmin v. Lesesne, 2 Ala. 359; Peirson v. Duncan, 162 Pa. St. 187; International & G. N. Ry. Co. v. Philips^ 63 Tex. 590. 81 — Jones v. State, 49 Ind. 549; Hill v. Newman, 47 Ind. 187; Dris- 380 Instructions to Juries; [§164 If the instructions given are correct, are applicable to the facts, and are not fairly open to misconstruction, there can be no reversal for their want of greater fullness. 82 § 165. Same— Pleadings and issues. A requested instruction explaining the paragraphs of a pleading is necessary, 83 and it is also usually held that the failure to submit an issue made by the pleadings and evidence will not be ground for reversal where no request was made that such issue be submitted. 84 coll v. People, 47 Mich. 413; Schry- ver v. Hawkes, 22 Ohio St. 308; Ott v. Oyer's Ex'x, 106 Pa. St. 7. 82 — Hyde v. St. Louis Book & News Co., 32 Mo. App. 298. 83 — ' ' An objection to an instruc- tion to the jury that it fails to state the difference between the various paragraphs of defendant's answer is unavailable. An instruction cover- ing the point should have been asked." Conrad v. Kinzie, 105 Ind. 281. 84 — Arkansas. Jones v. Seymour, ' 95 Ark. 593. Georgia. Eonsheim v. Brimberry, 89 Ga. 97. Maine. Barrett v. Delano (Me.), 14 Atl. 288. Michigan. Lynch v. Johnson, 109 Mich. 640; Copas v. Anglo-American Provision Co., 73 Mich. 541. Minnesota. McCarvel v. Phenix Ins. Co., 64 Minn. 193. Nebraska. Barr v. City of Omaha, 42 Neb. 341. New York. Carnes v. Piatt, 6 Bob. 271. ' Pennsylvania. Brinser v. Longe- necker, 169 Pa. St. 51. South Carolina. Hume v. Provi- dence Washington Ins. Co., 23 S. C. 199. South Dakota. Chrystal v. Ger- lach, 25 S. D. 128. Texas. Texas & P. Ey. Co. v. Gay, 86 Tex. 571, 25 L. E. A/52; Wilkin- son v. Johnson, 83 Tex. 392; Milmo v. Adams, 79 Tex. 526; Blackwell v. Hunnicutt, 69 Tex. 273; Gibson & Cunningham v. Purifoy, 56 Tex. Civ. App. 379; Jesse French Piano & Organ Co. v. Garza & Co., 53 Tex. Civ. App. 346; Texas Land & Loan Co. v. Watkins, 12 Tex. Civ. App. 603; Missouri, K. & T. Ey. Co. v. Thompson, 11 Tex. Civ. App. 658; Missouri, K. & T. Ey. Ce. v. Kirk- land, 11 Tex. Civ. App. 528; Missouri Pac. Ey. Co. v. Peay, 7 Tex. Civ. App. 400; Texas & P. Ey. Co. v. Eobinson, 4 Tex. Civ. App. 121; Voorheis v. Waller (Tex. Civ. App.) 35 S. W. 807; Shilling v. Shilling (Tex. Civ. App.) 35 S. W. 420; Mills v. Haas (Tex. Civ. App.) 27 S. W. 263; Sigal v. Miller (Tex. Civ. App.) 25 S. W. 1012; Bernheim v. Shannon (Tex. Civ. App.) 21 S. W. 386; Myer v. Fruin (Tex.) 16 S. W. 868. Wisconsin. Newton v. Whitney, 77 Wis. 515. "Where the evidence is barely sufficient, if at all, to raise the issue of fraud, failure of the court to charge on such issue is error of §166] Requests fob Instructions. 381 But in Iowa, it is held to be "the duty of the trial court to submit to the jury all questions of fact arising under the pleadings upon which evidence is introduced on the trial. ' ' 80 § 166. Same — Evidence. Unless requested, the court need not charge upon all the points of the case, nor recapitulate all the evidence, nor charge upon a particular part of the testimony, 86 and if in recapitulating testimony the court overlooks evidence im- portant to a defendant, it is the duty of counsel to call the attention of the trial judge to the omission, or error cannot omission, and can be taken advan- tage of only where appellant asked correct instruction below covering the omission." Kidwell v. Carson, 3 Tex. Civ. App. 327. The court below does not err in failing to instruct the jury upon de- fendant 's plea of privilege of being sued in another county, where no such instruction is requested by them, and the error is therefore one of omission, of which they cannot complain. Sigal v. Miller (Tex. Civ. App.) 25 S. W. 1012. Where, in an action to recover for goods furnished to one alleging him- self to be an infant, the only evi- dence as to defendant's age is the testimony of his father, it cannot be contended that the court erred in submitting the question of his age to the jury, where defendant! did not request an instruction that his age was conclusively proven. Lynch v. Johnson, 109 Mich. 640. "On a trial before a jury, where the court directs a verdict for the defendant, if there is any question for the jury, the party should re- quest the court to submit the same. If no such request is made, the ques- tion cannot be considered on re- view. ' ' Seymour v. Cowing, 1 Keyes (N. T.) 532. A failure to instruct as to a sepa- rate defense of one of several joint defendants is not error, in the ab- sence of a request. Edwards v. Smith, 71 Tex. 156; Shilling v. Shil- ling (Tex. Civ. App.) 35 S. W. 420. 85— Upton & Co. v. Paxton, 72 Iowa 295. 86— Boykin v. Perry, 49 N. C 315, 69 Am. Dec. 751n. The court need not bring to the notice of the jury all the evidence in relation to a subject on which they charge. State v. Morris, 10 N. C 388. "The trial judge is not required, in the absence of a prayer for special instructions, to present the evidence in his charge in every possible as- pect." Morgan v. Lewis, 95 N. C. 296. It is not reversible error to omit to direct the specific attention of the jury to isolated portions of the testi- mony which may bear with peculiar force in favor of one party rather than of the other. Wall v. Wall, 15 6a. App. 156. There is no rule of law which re- 382 Instructions to Juries. [§166 be predicated upon the refusal of the trial judge to grant a new trial because of such omission. 87 A party may entitle himself to the opinion of the court on the legal effect of any portion of the evidence only by specifically referring to it in his prayer for instructions, 88 and the failure of the court to instruct that certain evidence was admitted only for a certain purpose, and can be con sidered only for that purpose, is not error in the absence of a request to so instruct. 89 quires that any particular part of the evidence shall be charged upon, whether requests for instructions are made or not, and the failure of the court to notice admissions intro- duced in evidence by one of the par- ties is not error, in the absence of any request to charge upon such ad- missions. Hawkins v. Kermode, 85 Ga. 116. The mere omission to refer in the charge to all the evidence is not a sufficient cause for reversing the judgment, in the absence of a re- quest. Payne v. Noon (Pa.), 8 Atl. 428. The omission to charge the jury, without special request, that mere possession by the husband of the wife 's property will not subject it to his debts, and that conflicting testi- mony ought to be reconciled, if prac- ticable, is not ground for a new trial. Morgan v. Swann, 81 Ga. 207. 87— State v. Gould, 90 N. 0. 658; Brown v. Calloway, 90 N. C. 118; State v. Reynolds, 87 N. C. 545; State v. Grady, 83 N. C. 643. 88 — Dingee v. Jackson, 23 Pa. 176; Lancaster County Bank v. Albright, 21 Pa.' 228; Garrett v. Jackson, 20 Pa. 331. It is not error to fail to charge on the effect of certain promises to pay money where such charge is not pre- pared and offered. Buchholz v. Feustel, 179 111. App. 396. On a rule to compel an attorney to pay over money collected for his client, it is not error to fail to in- struct as to the effect of receipts in full, where no such instruction is re- quested. Howland v. Bartlett, 86 Ga. 669. ' ' A judge 's omission, while calling attention to the conflict in testimony as to a disputed payment, to state what effect the truth of either state- ment would have in respect to the operation of the statute of limita- tions, was error warranting reversal if he had been properly requested to charge that the items of plaintiff's claim were barred unless renewed by the payment." Hollywood v. Reed, 55 Mich. 308. "It is not always necessary for the court to tell the jury, when not requested to do so, what are the le- gal inferences from certain facts, if proved; but where the inference is clear, and the request is made, it is error to refuse to so instruct. ' ' How- ard v. Mutual Benefit Life Ins. Co., 6 Mo. App. 577. 89 — Alabama. Lamar v. King, 168 Ala. 285; Long Distance Tele- phone & Telegraph Co. v. Schmidt, 157 Ala. 391. California. People v. Gray, 66 §166] Requests fob Instructions. 383 When a defendant is entitled to an instruction limiting or modifying the effect of evidence legally introduced he must request such instruction. The court does not err in omitting instructions on such point, as it is of a collateral nature and not indispensable in arriving at a correct verdict ; 90 and it has also been held as to any matter not referred to in the pleadings or the issues, but introduced into the case by competent and material testimony, failure to instruct with reference to this testimony in the absence of a request is not erroneous. 91 An instruction correcting error in the admission of evi- dence, 92 or to disregard evidence, 93 should be requested, and Cal. 276; People v. Ah Tute, 53 Cal. 613; People v. Collins, 48 Cal. 277; People v. Connelly, 38 Pac. 42. Illinois. Foley v. Everett, 142 111. App. 250; City of Chicago v. Cohen, 139 111. App. 244. Iowa. Greenlee v. Ealy, 145 Iowa 394. Maine. Stone v. Redman, 38 Me. 578. Minnesota. Nininger v. Knox, 8 Minn. 140 (Gil. 116). Missouri. Kirby v. St. Louis & S. F. E. Co., 146 Mb. App. 304. New Hampshire. Dow v. Merrill, 65 N. H. 107. New York. Peqple v. McLaughlin, 2 App. Div. 419, 37 N. T. Supp. 1005. North Carolina. Hill v. Bean, 150 N. C. 436. Texas.' Mayer v. Walker, 82 Tex. 222; Walker v. Brown, 66 Tex. 556.; Shumard v. Johnson, 66 Tex. 70; Posener v. Harvey, — Tex. Civ. App. — , 125 S. W. 356; Mutual Life Ins. Co. of New York v. Baker, 10 Tex. Civ. App. 515; Boos v. Lewyn, 5 Tex. Civ. App. 593. Wisconsin. Roebke v. Andrews, 26 ,Wis. 312. Where the court instructs the jury that certain admissions admitted in evidence' are not binding upon the plaintiff, a failure to instruct the jury for what purpose they might consider the admissions is not error, in the absence of a request to so charge. People v. Ah Yute, 53 Cal. 613; Mayer v. Walker, 82 Tex. 222. Failure to restrict the jury in its consideration of evidence, when no instruction to that effect has been requested, is not reversible error. Mutual Life Ins. Co. of New York v. Baker, 10 Tex.. Civ. App. 515. 90 — People v. Carmean, 23 Cal. App. 396, 138 . Pac. 117; State v. Douglas, 258 Mo. 281. 91 — State v. Seevers, 108 Iowa 738. 92 — "Where a party fails to re- quest that an instruction given by the court to correct an error in the admission of evidence be made more explicit, it will be deemed to have been satisfactory to him at the time, and he cannot afterwards be heard to complain." Moore v. Shields, 121 Ind. 267. 93-^-Where, on objection, the court excludes hearsay evidence, and the 384 Instructions to Juries. [§ 166 the court need not instruct on its own motion to obviate the effect of evidence not objected to. 94 But, where material evidence tending to present a definite legal position or having legal value in reference to the issues or any of them is introduced and a specific prayer for in- structions concerning it is properly preferred, stating cor- rectly the law applicable, the failure to give such instruction substantially is reversible error. 96 A party who does not ask for specific instructions as to the amount of evidence required to overturn the presump- tion arising from a settlement cannot complain if none are given. 96 Where the court charges, on a plaintiff's request, that an affirmative defense must be established by a preponderance of the evidence, a failure to charge that the evidence on this point must be clear and positive is not error. 97 § 167. Same— Witnesses. In the absence of a timely written request to instruct the jury as to the law with reference to impeachment of wit- nesses, it is not error for the judge in his charge to omit all reference to this subject. 98 Where a party desires the-court to charge specially on the testimony of a witness, attention should be called to the testimony by a proper request. 99 ' party objecting fears the effect of 97 — Gottstein v. Seattle Lumber & such testimony notwithstanding its Commercial Co., 7 Wash. 424, 35 Pac. exclusion, he should request an in- 133. struction to the jury to disregard it, 98 — Hart v. State, 14 Ga. App. and cannot complain of a failure to 714. give such instruction unless he doesi 99 — Kurtz v. Haines, 2 Monag. so request. Russell v. Nail, 79 Tex. (Pa.) 328. 664. See also, Pass v. Western U. The omission of the court to com- Tel. Co., 82 S. C. 461. ment upon the alleged extraordinary 94 — Illinois Cent. R. Co. v. Atwell, character of the testimony of a wit- 198 111. 200, aff ' g 100 111. App. 513. ness cannot be alleged as error if the 95 — Marcom v. Durham & S. R. court was not requested to make Co., 165 N. C. 259. such comment. Warden v. City of 96 — Gheen v. Heyburn, 1 Walk. Philadelphia, 167 Pa. St. 523. (Pa.) 148. § 169] Bequests fob Instructions. 385 § 168. Same— Verdict. A failure to direct a verdict for a party is not error in the absence of a request to do so, 1 and a party who desires the jury to be advised as to 'the form of a verdict should request an instruction embodying such form. 2 A failure to instruct that the jury might find one joint defendant guilty and disagree as to the other is not erro- neous, in the absence of a request to so instruct. 3 § 169. Same — Criminal cases. While it is the duty of the court in a criminal case to fairly present the issues in its charge to the jury in order that they may have a clear and intelligent notion as to what they are to decide, yet it is not necessary that the court on its own motion instruct upon every matter arising in the case. 4 Where the statutory definition of an offense is given, if the defendant desires a more specific statement as to tlie elements necessary to constitute such offense he should make a request .therefor, 5 and where no instruction is re- 1 — Beading v. Metcalf, Hardin 4 — State v. Brandenberger, 151 (Ky.) 544; Wiggins v. Guthrie, 101 Iowa 197. N. G. 661; Lawrence v. Hester, 93 5— State v. O'Hagan, 124 Minn. N. C. 79; Ca'rr v: H. C. Frick Coke 58. Co., 170 Pa. St. 62; Wray v. Spenee, If the court in its instructions 145 Pa. St. 399; Cannell v. Smith, 142 gives, in general terms, the elements Pa. St. 25, 12 L. E. A. 395n; Keaddy of the crime charged, and it is not v. Borough of Shamokin, 137 Pa. St. asked bv defendant to enlarge upon 98; Pennsylvania B. Co. v. Page, 21 and ex P lain further and particular Wkly. Notes Cas. (Pa.) 52. elements or features thereof, failure 2-Triggs v. Mclntyre, 215 111. 369, to give fuller and ' more ex P licit in " structions is not error which will aff'g 115 111. App. 257. Where the court instructed as to justify a reversal. State v. Potter, 15 Kan. 302. the form of a verdict of guilty of Omission of word "actually" in petit or grand larceny, a failure to instructing as to burglary of house , instruct as to the form of a, verdict occupied and used a t time of offense of not guilty is not error, in ab- as p i ace of residence, held not re- sence of a request. Hodge v. State, versible error in absence of request 85 Tnd. 561- on subject. Payne v. State, — Tex. 3— Morgan v. State, 117 Ind. 569. Cr. App. — , 148 S. W. 694. Blashfield Vol. 1—25 386 Instructions to Juries. [§169 quested, it is not erroneous for the court to fail to instruct as to an alibi, 6 as to self-defense, 7 or as to drunkenness. 8 The failure to charge as to effect of evidence is not error where no instruction is requested. 9 Thus, the failure to instruct as to evidence of good char- acter does not constitute reversible error, 10 and a like rule applies to circumstantial evidence. 11 In the absence of a timely written request, the court is not required to charge a theory wholly dependent upon the statement of the accused, 12 and it is not error to fail to instruct that the defendant's failure -to testify does not create any presumption of guilt against him when such in- struction is not requested. 13 If a defendant in a misdemeanor case desires fuller in- 6 — State v. Lightfoot, 107 Iowa 3*4. It was not reversible error to fail to instruct as to the defense of alibi where the defendant makes no re- quest for such instruction. Bloom v. State, 95 Neb. 710. 7 — State v. Woodward, 84 Iowa 172. "Where a prisoner prayed for instructions only on the ground that the deceased did not intend to kill him, and not on the ground of a rea- sonable belief on his part that the deceased did so intend, the judge did not err in omitting to instruct the jury on the latter point." State v. Scott, 26 N. C. 409, 42 Am. Dec. 148. 8 — A failure to charge in respect to a'statute providing that drunken- ness shall be no excuse for crime is not error, in the absence of a re- quest. So held on indictment for as- sault with intent to kill. Thomas v. State, 91 Ga. 204. 9 — On an indictment for embezzle- ment, where evidence of other sim- ilar embezzlements by defendant was admitted, but the court charges that the defendant is not on trial for such other embezzlements, a failure to charge, that the evidence of such other embezzlements is admissible only to show a criminal intent is not error, in the absence of a request. People v. Connelly (Cal.), 38 Pac. 42. 10 — State v. Brandenberger, 151 Iowa 197; Heard v. State, 9 Tex. App. 1. Contra, see State v. Anslinger, 171 Mo. 600. It will be noted that this decision is bottomed upon a statute which requires the court to instruct whenever necessary upon the subject of good character, whether requested or not. 11 — On a prosecution for a misde- meanor, failure to charge on cir- cumstantial evidence is not ground for reversal, in the absence of a request. Lucio v. State, 35 Tex. Or. App. 320. 12— Pitts v. State, 14 Ga. App. 283. 13— State v. Lesh, 27 N. D. 165. §169] Bequests foe Instructions. 387 structions in regard to certain matters he should request such charges, 14 and the failure to caution the jury as to the evidence of an accomplice in a misdemeanor case is not reversible error, in the absence of a special request. 15 A failure to instruct the jury as to the law with respect to a "reasonable doubt" is not error, in the absence of a request. 16 , Also the failure of the court to instruct the jury to acquit if the venue was not proven is not error, in the absence of a request. 17 The failure to charge on the right of the jury to convict of a lesser offense is not reversible error, unless such instruc- tion is requested, 18 and it has been held not erroneous, in the absence of a request, to fail to instruct that an accused Tex. Neb. J. L. Baxt. 14 — Noodleman v. State, — Cr. App. — , 170 S. W. 710. 15— -Soemann v. State, 94 582. 16— Mead v. State, 53 N. 601; Butler v. State, 7 (Tenn.) 35. Where the court instructs the jury that, "if they believe from the evi- dence, etc.," and omits to add "be- yond a reasonable doubt," because, when such instruction is given, it is intended and understood that before the jury can convict they must be- lieve the material facts, "beyond a reasonable doubt," there is no avail- able error, and if the defendant wants the very words inserted in the instruction, he must ask to have it done, or ask for a general instruc- tion on the subject. State v. Robin- son, 20 W. Va. 714. 17— People v. Marks, 72 Cal. 46, 13 Pac. 149. 18 — State v. Horn, 21 S. D. 237. Manslaughter. It cannot be urged as error in a case of homicide that the court failed to submit instruc- tions to the jury as to the law of manslaughter applicable to the case, defendant not having asked it. Ed- wards v. State, 47 Miss. 589. Com- pare Sanders v. State, 41 Tex. 306. Failure to instruct as to involuntary manslaughter in a trial for murder is not error, in the absence of re- quest. Adams v. State, 65 Ind. 565. Where an accused requests a correct instruction as to involuntary man- slaughter but does not present what he considers a correct instruction, he cannot complain of the refusal to grant his request. Carlton v. State, 109 Ark. 516. Assault. On indictment for as- sault with intent to commit rape, it is not error to fail to charge that the jury may find the defendant guilty of a simple assault in case they find him not guilty of assault with intent to commit rape, as the defendant could not have been prej- udiced by a charge which allowed the defendant to be acquitted unless the jury, on the evidence, found him guilty of the higher crime charged. State v. Hanlon, 62 Vt. 334. 388 Instructions to Juries. [§169 might be recommended to mercy, 19 or to instruct as to the right of the jury to relieve from the death penalty. 20 § 170. Negligence cases. In an action for negligence, a failure to define the terms "negligence,'" "ordinary care," "reasonable care and dili- gence, " " gross negligence, " " carelessness " or " unfitness, ' ' as used in the instructions, is not error in the absence of a request to do so. 21 Similarly, in the absence of a request the 19 — In the absence of a request, it is not a ground for a new trial that the judge failed to instruct the jury, in an arson case, that the prisoners might be recommended to mercy, and their punishment mitigated. State v. Dodson, 16 S. C. 463. 20 — "The language used is: 'It is within your discretion to pro- nounce such a sentence as will re- lieve such defendant from the ex- treme penalty of the law.' The instruction is certainly open to criti- cism in this respect. In the trial of cases of this kind, the court should carefully instruct the jury, not only that they have the discretion to re- lieve a defendant from the extreme penalty of the law, but they should be told in specific terms what ver- dict they are authorized to return, and the forms of the different kinds of verdicts should be stated, and such forms of verdicts prepared and sent out with the jury, allowin'g them to select the one agreed upon by them. But the jury were ap- prised of the fact here that they were not bound to return such a verdict as would result in the in- fliction of the death penalty. There was nothing in the instruction to mislead. If the counsel for defend- ant desired a more specific charge upon the point, they should have asked it, and, if they did not do so, the responsibility must rest with them. People v. Flynn, 73 Cal. 511, 15 Pae. 102; People v. Ah Wee, 48 Cal. 237; People v. Haun, 44 Cal. 96; People v. Collins, Id. 227. "We do not wish to be understood as hold- ing that an entire failure to instruct on this subject, in this class of cases, would .not be error; but where the court does instruct and call to the attention of the jury that it is with- in their province to determine whether or not the extreme penalty shall be inflicted, and the instruc- tion is not such as to mislead the jury, a defendant cannot be allowed to complain that the instruction was not sufficiently certain and specific, when the attention of the court be- low has not been called to it, and no more specific instruction has been asked for. ' ' People v. Olsen, 80 Cal. 122, 22 Pac. 125*. 21 — Atlantic Coast Line E. Co. v. Jones, 132 Ga. 189; Blue Grass Trac- tion Co. v. Ingles, 140 Ky. 488; Quirk v. St. Louis United Elevator Co., 126 Mo. 279; Johnson v. Mis- souri Pac. Ey. Co., 96 Mo. 340, 9 Am. St. Eep. 351; Campbell v. Hoosier Stave & Lumber Co., 146 Mo. App. 681; Kelley v. Cable Co., 7 Mont. 70, 14 Pac. 633; Galveston, H. & S. A. Ey. Co. v. Arispe, 81 Tex. 517; Gal- veston, H. & S. A. Ey. Co. v. Waldo (Tex. Civ. App.) 26 S. W. 1004. §170] Requests fob Instructions. 389 court need not define such a term as "sufficient and secure." 22 Also, it cannot be contended that a definition is insufficient unless a further charge relative to such subject is re- quested. 23 If plaintiff desires the court to differentiate between ' ' gross negligence ' ' and a conscious failure to observe ' ' due care," he should make a request as to such subject. 24 Instructions as to contributory negligence will not be given by the court of its own motion but m'ust as a general rule be requested, 25 and the same rule applies to instruc- tions as to the doctrine of proximate and remote cause, 20 Where the court gives a correct definition of negligence, and an at- tempted definition of ordinary care is meaningless, the defendant should request a proper definition of ordi- nary care. San Antonio & A. P. Ry. Cb. v. Batte, — Tex. Civ. App. — , 163 S. W. 630. 22 — In an action for injuries to a servant caused by a defective hand- hold, the failure to define "sufficient and secure ' ' was an error of omis- sion, and the defendant should have requested a special charge to remedy the omission. Galveston, H. & S. A. Ry. Co. v. Enderle, — Tex. Civ. App. — , 170 S. W. 276. 23 — Donati v. Righetti, 9 Cal. App. 45, 97 Pac. 1128; Texas & N. O. R. Co. v. Reed, 54 Tex. Civ. App. 26. Where the court charged that, "by the term 'negligence,' when used in this charge, is meant the omission or failure to do something which an ordinarily prudent and careful person would have done un- der like circumstances, ' ' it cannot be contended that this definition of neg- ligence did not include the doing of any affirmative act, unless a further charge upon this phase of the case is requested. Campbell v. Warner (Tex. Civ. App.), 24 S. W. 703. 24— Carolina Rice Co. v. West Point Mill Co., 98 8. C. 476. 25— Orr v. Garabold, .85 Ga. 373 Livingston v. Chicago, R. I. & P. R Co., 41 Okla: 505, 139 Pac. 260 Western V. Tel. Co. v. Buchanan, — Tex. Civ. App. — , 129 S. W. 850 Western TJ. Tel. Co. v. Mack, - Tex. Civ. App. — , 128 S. W. 921 Houston & T. C. R. Co. v. Lentz, 56 Tex. Civ. App. 498. 26— Wickham v. Chicago, St. P., M. & O. R. Co., 110 Minn. 74; Stumm v. Western IT. Tel. Co., 140 Wis. 528. A charge is not erroneous merely upon the ground that it does not enter sufficiently into the particulars which distinguish proximate from remote causes. International & G. N. R. Co. v. Smith (Tex. Sup.) 1 S. W. 565. In an action against a master by a servant to recover for injuries caused by the alleged negligence, of another Bervant, an instruction can- not be objected to as authorizing the jury to find for plaintiff if defendant was negligent in employing the other servant, regardless of the remote- ness of the negligent act of employ- ment, unless defendant requests a charge reciting the facts which tend to establish such remoteness. Mexi- 390 Instructions to Jubies. [§ 170 the doctrines of fellow-servants, 27 or scope of employment. 28 Where the court is not requested to charge upon the sub- ject of assumption of risk and no exception is taken to the court's failure to so charge, the appellate court is not required to consider such question, 29 and if an instruction as to assumed risk is too restrictive, the complaining party should prepare and request a special charge as to such defense. 30 In an action for injuries to a passenger, where the plain- tiff's counsel argued that the failure of defendant's servants to appear and testify raised a presumption that they were negligent, in the absence of a request, there was no duty on the court to charge that defendant was not bound to produce all the agents, and employees who were connected with the running of the train. 31 § 171. Same — Damages — Costs. A party will not be heard to complain that the instructions as to the measure of damages in a particular case are insuffi- cient in the absence of a request for a further instruction. can Nat. B. Co. v. Musette, 7 Tex. act within the scope of a, servant's Civ. App. 169. employment is not reversible error, 27 — Where, in an action by a serv- in the absence of a request for such ant against a master, the court has an explanation. Vernon v. Comwell, correctly stated who are fellow- 104 Mich. 62. servants, if the defendant desires 29 — Myers v. Pittsburgh Coal Co., specific instructions on the point of 233 TJ. S. 184, 58 L. Ed. 906. the relation between the plaintiff The failure of the court to charge and another employee whose negli- that a servant assumes the risk inci- gence is alleged to have caused the dent to the employment does not fur- injury sued for, the defendant should nish ground for reversal, where no request such instruction. Philadel- special charge is requested. In tor - phia & K. E. Co. v. Trainor, 137 Pa. national & G. N. E. Co. v. Beasley, St. 148, 26 Wkly. Notes Cas. (Pa.) 9 Tex. Civ. App. 569. 441. 30 — St. Louis Southwestern E. Co. 28 — Where the court has charged of Texas v. Pope, 43 Tex. Civ. App. the jury that the defendant is not 616. liable for the acts of his servant 31 — Chattanooga, E. & C. E. Co. beyond the scope of his employment, v. Huggins, 89 Ga. 494. a failure to state what constitutes an § 171] Requests foe Instructions. 391 The failure to state a definite rule for assessing damages is not error. 32 The better practice in suits for damages for personal in- juries is for a party who is disappointed with the terms in which the district judge has stated to the jury the rule to be followed in estimating damages to at once ask him to give to the jury, in addition, a carefully drawn instruction, em- bracing the rule to be followed in estimating the damages, as he believes it to be. 33 The omission of the court to charge for interest on dam- ages recovered cannot be assigned as error where no special instruction is asked, 34 and in the absence of a request, a failure to instruct as to what matters may be considered in mitigation of damages is not error. 35 An instruction on the measure of damages in an action, ' ' I suppose you all understand what the present worth of a given sum means. It is arrived at by dividing a given sum by one dollar, plus the legal rate of interest, or usual rate of interest, for the given time," where no other instruction was requested or suggested, is sufficient. 36 Where a set-off is involved, and a general verdict is 32 — Massachusetts. Buzzell v. v. Harmonson (Tex. Civ. App.), 22 Emerton, 161 Mass. 176. S. W. 764. Minnesota. Clapp v. Minneapolis Wisconsin. Stewart v. City of & St. L. Ry. Co., 36 Minn. 6, 1 Am. Eipon, 38 Wis. 584. St. Eep. 629. United States. Texas & P. Ey. Co. Missouri. Browning v. Wabash v. Cody, 14 C. C. A. 310, 67 Fed. 71. Western Ey. Co., 124 Mo. 55; Taylor 33— Galveston Oil Co. v. Malin, 60 v. City of Springfield, 61 Mo. App. Tex. 645. 263. ' 34— Gulf, C. & S. F. Ey. Co. v. New York. Harris v. Northern In- Fink, 4 Tex. Civ. App. 269. diana E. Co., 20 N. Y. 232. 35— East Tennessee, V. & G. Ey. North Carolina. Willey v. Norfolk Co. v. Fleetwood, 90 Ga. 24; Kelley Southern E. Co., 96 N. C. 408. v. Kelley, 8 Ind. App. 606; Tetherow Oregon. Page v. Finley, 8 Ore. 45. v. St. Joseph & D. M. E. Co., 98 Mo. Texas. Maverick v. Maury, 79 74, 14 Am. St. Eep. 617; San Antonio Tex. 435; Freiberg v. Elliott (Tex.), & A. P. Ey. Co. v. Kniffen, 4 Tex. 8 S. W. 322; Galveston, H. & S. A. Civ. App. 484. Ey. Co. v. Worthy (Tex. Civ. App.), 36— Kinney v. Folkerts, 84 Mich. 27 S. W. 426; Gulf, C. & S. F. Ey. Co. 616. 392 Instructions to Juries. [§171 rendered for the defendant, without showing whether the plaintiff has failed to establish any claim, or whether his demand is balanced by the set-off, the plaintiff cannot com- plain that the judge did not instruct the jury in relation to the costs, unless such instruction was requested. 37 § 172. Necessity of request where erroneous instructions are given. ' ' One who has not asked a proper instruction on a subject cannot complain of the refusal of the court to give an im- proper one," 38 and the giving of an erroneous instruction is error, whether any requests to charge were made or not. A request to modify or correct the instruction given is not necessary to enable a party to assign error; 39 but, as a 37 — Osgood v. Tonsil, 33 Me. 360. 38— Eussell v. State, 112 Ark. 282. 39 — Colorado. Melcher v. Beeler, 48 Colo. 233, 139 Am. St. Bep. 273, 110 Pae. 181. Iowa. State v. Pennell, 56 Iowa 29; State v. Glynden, 51 Iowa 463; State v. Walters, 45 Iowa 390. Kentucky. West Kentucky Coal Co. v. Davis, 138 Ky. 667. Maine. . Stephenson v. Thayer, 63 Me. 143. Michigan. Bouse v. Michigan United Eys. Co., 158 Mich. 109. Missouri. Shinn v. United Eys. Co., 146 Mo. App. 718; Warrington v. Kallaner, 135 Mo. App. 5. New York. Low v. Hall, 47 N. Y.' 104; Gowdey v. Bobbins, 3 App. Div. 353; Parsons v. Brown, 15 Barb. 590; •Carnes v. Piatt, 6 Bob. 270. North Carolina. Mitchell v. Wel- born, 149 N. C. 347; Pierce v. Als- paugh, 83 N. C. 258; Hice v. Wood- ard, 34 N. C. 293; Bynum v. Bynum, 33 N. C. 632; McEae's Adm'r v. Evans, 18 N. C. 243. Ohio. Globe Ins. Co. v. Sherlock, 25 Ohio St. 50; Jones v. State, 20 Ohio 46. Pennsylvania. Seigle v. Louder- baugh, 5 Pa. St. '490. South Carolina. Carter v. Colum- bia & G. B. Co., 19 S. C. 26. Texas. Ford v. McBryde, 45 Tex. 499; Studd v. Saunders, 2 Posey, Unrep. Cas. (Tex.) 122; Settle v. San Antonio Traction Co., — Tex. Civ. App. — , 126 S. W. 15. "If a judge omits to charge upon a point presented by the evi- dence, it is no error, unless he has been requested to give the charge; but if he make a charge against law, it is error, unless it be upon a mere abstract proposition, and it is ap- parent upon the whole case that it could not have misled the jury." Hice v. Woodard, 34 N. C. 293. "Where the charge of the court in effect excluded material conclusions to be deduced from the evidence, it is error, without counter instructions having been presented" Stude v. §173] Bequests for Instructions. 393 general rule, an objection must be made and an exception saved, or the error will be deemed waived. 40 § 173. Time of making request. The time of presenting instructions is frequently governed by statute, as where statutory provisions require the re- quests to be handed up at or before the close of the evi- dence. 41 The court may also prescribe reasonable rules as to the time of making requests, 42 as when a rule requires the in- structions to be presented before argument, 43 and such a rule is usually considered reasonable. 44 Saunders, 2 Posey, Unrep. Cas. (Tex.) 122. Where the judge charged that de- fendants were liable even if the jury should find the facts precisely as defendant's witnesses testified, and thereupon directed verdict for plaintiffs, to which defendants ex- cepted, it was held that defendants might, on appeal, raise the question of the correctness of the charge and direction, though they had not re- quested the court to submit any question of fact. Low v. Hall, 47 N. T. 104. "Where the jury has been mis- directed in reference to a controlling question in the case, the judgment should be reversed and a new trial granted, although the weight of evi- dence may seem to support the ver- dict." . Globe Ins. Co. v. Sherlock, 25 Ohio St. 50. 40— See Abrahams v. Kelly, 2 S. C. 237,- wherein it is said that a mis- statement of the law is not error un- less the attention of the trial court is called to it, and he neglects or refuses to correct it. 41— N. C. Rev., §§"536, 538; Bar- ringer v. Deal, 164 N. C. 246. 42 — Prindeville v. People, 42 111. 217; McMahon v. O'Connor, 137 Mass. 216; Carney v. Barrett, 4 Ore. 171; Atchison, T. & S. P. R. Co. v. Hamble, 101 C. C. A. 270, 177 Fed. 644. 43 — Requested instructions may be required by rule of court to be pre- sented before argument. Pittsburg, C, C. & St. L. R. Co. v. Hewitt, 202 111. 28, aff'g 102 HI. App. 428; Raueh v. Bankers ' Nat. Bank of Chi- cago, 143 111. App. 625'. Requested instructions must be presented before beginning of clos- ing argument. Chicago & A. R. Co. v. Louderbaek, 125 111. App. 323. The rule of court requires requests to be presented in writing before the argument begins. Salley v. Cox, 94 S. C. 216, 46 L. R. A. (N. S.) 53n, Ann. Cas. 1915 A 1002n; State v. Glenn, 88 S. C. 162. Courts have the right to make a rule in criminal cases that written instructions must be handed to the court before the argument com- mences. People v. Sears, 18 Cal. 635. 44 — Rule requiring instructions to be presented in writing before argu- ment is reasonable. Manhattan Life 394 Instructions to Juries. [§173 In most jurisdictions the rule prevailing requires the re- quest to be made at or before the close of the evidence, and before the beginning of the argument, 45 though in some Ins. Co. v. Francisco, 17 Wall. (U. S.) 672, 21 L. Ed. 698. Rule requiring requests to be sub- mitted before conclusion of argu- ment is reasonable. Sterling Organ Co. v. House, 25 W. Va. 64. The court cannot lay down an un- bending rule that all requests to charge shall be submitted before the argument is begun. People v. Gar- butt, 17 Mich. 9, 97 Am. Dec. 162n. ' ' A rule of court prohibiting a party from obtaining the instruction of the court to the jury on any matter of law relevant in the case, at any time before the jury retire from the bar, ought not be made, and, if -made, ought not to be adhered to." Bell v. North, 4 Litt. (Ky.) 133. 45 — Arizona. Territory v. Harper, 1 Ariz. 399, 25 Pac. 528. California. People v. Demasters, 105 Cal. 669, 39 Pac. 35; People v. Sears, 18 Cal. 635; Anderson v. Parker, 6 Cal. 197. Illinois. Rauch v. Bankers Nat. Bank of Chicago, 143 HI. App. 625; McMahon v. Sankey, 35 111. App. 345. Indiana. Ransbottom v. State, 144 Ind. 250; Benson v. State, 119 Ind. 488; Grubb v. State, 117 Ind. 277; Bvansville & T. H. R. Co. v. Crist, 116 Ind. 446, 2 L. R. A. 450, 9 Am. St. Rep. 865; Louisville, N. A. & C. Ry. .Co. v. Wood, 113 Ind. 544; Ko- pelke v. Kopelke, 112 Ind. 435; Phil- lips v. Thorne, 103 Ind. 275; Surber v. State, 99 Ind. 71; Hege v. New- som, 96 Ind. 426; Terry v. Shively, 93 Ind. 413; Foxwell v. State, 63 Ind. 539; Glasgow v. Hobbs, 52 Ind. 239; Ollam v. Shaw, 27 Ind. 388; Supreme Tent, Knights of Maccabees of World v. Ethridge, 43 Ind. App. 475; Anderson v. Lake Shore & M. S. Ry. Co., 26 Ind. App. 196; Lake Erie & W. R. Co. v. Brafford, 15 Ind. App. 655; German Eire Ins. Co. v. Colum- bia Encaustic Tile Co., 15 Ind. App. 623. Kansas. Atchison, T. & S. F. R. Co. v. Franklin, 23 Kan. 74. Massachusetts. Brick v. Bosworth, 162 Mass. 334; Ela v. Coekshott, 119 Mass. 416. Michigan. Kelso v. Woodruff, 88 Mich. 299. And see cases cited post this note. Missouri. Buck v. People's St. Ry. & Elec. L. & P. Co., 108 Mo. 179; Payne v. Payne, 57 Mo. App. 130; State v. Bickel, 7 Mo. App. 572. North Carolina. Biggs v. Gur- ganus, 152 N. C. 173; Luttrell v. Mar- tin, 112 N. C. 593; Ward v. Albemarle & R. R. Co., 112 N. C. 168; State v. Whitmire, 110 N. C. 367; Posey v. Patton, 109 N. C. 455; Grubbs v. North Carolina House Ins. Co., 108 N. C. 472, 23 Am. St. Rep. 62; Taylor -v. Plummer, 105 N. C. 56; Powell v. Wilmington & W. R. Co., 68 N. C. 395; State v. Rowe, 98 N. C. 629. Ohio. Caldwell v. Brown, 9 Ohio Cir. Ct. R. 691 ; Lutterbeck v. Toledo Consolidated St. R. Co., 5 Ohio Cir. Dec. 141. Pennsylvania. Kinley v. Hill, 4 Watts & S. 426. South Dakota. White v. Amrhien, 14 S. D. 270. Vermont. Wilmot v. Howard, 39 Vt. 455. Virginia. Richmond & M. R. Co. v. Humphreys, 90 Va. 425. §173] Requests for Instructions. 395 states it is the practice to request instructions after the argument. 46 In some jurisdictions the request must be made before the giving of the general charge or it will be too late, and may- Wisconsin. Carey v. Chicago, M. & St. P. Ry. Co., 61 Wis. 76. United States. United States v. Gilbert, 2 Sumn. 22, Fed. Cas. No. 152(34; Manhattan Life Ins. Co. v. Francisco, 17 Wall. 672, 21 L. Ed. 698; Atchison, T. & S. F. R. Co.„v. Hamble, 101 C. C. A. 270, 177 Fed. 644. See People v. Demasters, 105 Cal. 669, 39 Pac. 35; People v. Sears, 18 Cal. 635; Brick v. Bosworth, 162 Mass. 338; Carey v. Chicago, M. & St. P. Ry. Co., 61 Wis. 71. See also, Buck v. People's St. Ry. & Elec. Light & Power Co., 108 Mo. 179. A request for written instructions, made during the concluding argu- ment, is too late. Atchison', T. & S. F. R. Co. v. Franklin, 23 Kan. 74. Any special requests to charge should be presented to the court by the opening of the argument for the party making the requests. Wilmot v. Howard, 39 Vt. 455; Cady v. Owen, 34 Vt. 598; Vaughan v. Por- ter, 16 Vt. 266. It is clear that the court does not err in this respect. A request of counsel that the court shall arrest and thereby disarrange the argument of counsel, in .order to instruct the jury on the law of the case, is pre- mature, and opposes the well-settled rules of practice. Richmond & M. R. Co. v. Humphreys, 90 Va. 425. Until defendant has announced that he rests his case he cannot insist upon the court's instructing the jury. Kelso v. Woodruff, 88 Mich. 299; Clow v. Plummer, 85 Mich. 550; Hinchman v. Weeks, 85 Mich. 535; Denman v. Johnston, 85 Mich. 387; Morley v. Liverpool & L. & G. Ins. Co., 85 Mich. 210. Where counsel, at the "conclusion of the trial, handed to the court fifty-eight written instructions, occu- pying twenty pages, it was not in- cumbent upon the judge to stop the progress of the trial for their exam- ination, and they 'were properly re- fused. " Anderson v. Parker, 6 Cal. 197. 46 — In Iowa, under a statute pro- viding that when the argument is concluded either party may reque'st instructions, instructions which are submitted during the opening and only argument made at the trial can- not be refused as being presented too late. McCaleb v. Smith, 22 Iowa 242. In Oregon, requests should be presented before conclusion of the argument. Carney" v. Barrett, 4 Ore. 371. And in West Virginia a rule to that effect was held reasonable. Sterling Organ Co. v. House, 25 W. Va. 65. In South Carolina, under rule of court, requests should be pre- sented before the argument, but at the close of the argument either counsel may present such "addi- tional, requests as may be suggested by the course of the argument." State v. Hutchings, 24 S. C. 145. "A rule of court requiring counsel to file and submit to the court any instruc- tions they may offer, before the ar- gument is closed, to the jury, does not operate where the cause is sub- mitted without argument." Tinney 396 Instructions to Juries. [§173 be refused; 47 while in other jurisdictions requests for addi- tional instructions may be made after the general charge, and before the retirement of the jury, 48 and requests made v. Endicott, 5 Oal. 102. Where no request for instructions is made in writing before the closing argument, as required by a rule of court, a spe- cial leave to present requests later cannot be implied from ' ' a postpone- ment of discussion of a question raised on evidence to the argu- ments." In re Keohane, 179 Mass. 69. "The court may, after argument begun by counsel for the defendant, give additional instructions, or mod- ify those already given, at the re- quest of the district attorney." Wood v. State, 64 Miss. 761. 47 — Connecticut. Fitch v. Belding, 49 Conn. 469; Donahue v. Coleman, 49 Conn. 464. Minnesota. Shartle v. City of Minneapolis, 17 Minn. 308 (Gil. 284). New York. Schuhle V. Cunning- ham, 14 Daly 404, 13 N. Y. St. 81. North Carolina. Posey v. Patton, 109 N. C. 455; Marsh v. Richardson, 106 N. C. 539; Powell v. Wilmington & W. R. Co., 68 N. C. 395. Utah. Flint v. Nelson, 10 Utah 261, 37 Pac. 4W. United States. United States v. Gilbert, 2 Sunm. 21, Fed. Cas. No. 15204. See Billings v. McCoy, 5 Neb. 187. Compare Winne v. Brun- dage, 40 N. Y. Supp. 225. . 48 — Georgia. Brooks v. State, 96 Ga. 353; Yeldell v. Shinholster, 15 Ga. 189. Massachusetts. Brick v. Bosworth, 162 Mass. 334; McMahon v. O'Con- nor, 137 Mass. 216. Michigan. People v. Garbutt, 17 Mich. 25. New York. Pfeffele v. Second Ave. R. Co., 34 Hun 499. Ohio. Venable v. State, 1 Ohio Cir. Dec. 165. Tennessee. Williams v. Miller, 2 Lea 406. Texas. Boone v. Miller, 73 Tex. 557. See also, Freeman v. Puckett, 56 Tex. Civ. App. 126. The request should be made imme- diately after the close of the charge. _ Boone v. Miller, 73 Tex. 557. "The proper time to present requests for instructions is before the charge, and not after, unless there are circumstances making it necessary to call attention to some matter of detail or some phase of the case which has been overlooked or inaccurately dealt with." Ley- decker v. Brintnall, 158 Mass. 298. "While the practice referred to may be, and undoubtedly is, an ex- cellent one, yet it must be apparent to any one that the charge of the court may itself develop the neces- sity of counsel's calling the atten- tion of the court to some point that has been overlooked, and asking a direct- charge thereon. Counsel need not, in the first instance, make any requests, or they may request the court to charge upon some particular part of the case. In either event, they are justified in assuming that the courtj will fully, in the charge, cover all the essential parts of the case, and if, after the charge has been given, they see that some essen- tial has been overlooked, no practice or rule of that court adopted for mere convenience will deprive them §173] Bequests foe Instructions. 397 before the general charge have been held to be premature, and therefore properly refused. 49 It is practically a universal rule that requests, to be in time, must be presented before the case has been finally sub- mitted to the jury. 50 of their right to present a request covering the omission." Crippen v. Hope, 38 Mich. 344. "It would be better if requests to charge could be submitted in writing before the court proceeds to charge; but if, in the pressure of business, this is impracticable, in such event, after the charge has closed, the at- tention of the court may be called to the point omitted." Yeldell v. Shinholster, 15 Ga. 189. It is obviously reasonable that it should be settled as far as possible, before the arguments begin, what facts must be found by the jury to entitle one side or the other to pre- vail; and it is still more obvious that if the right to present requests for rulings is to be an aid in the ad- ministration of justice, the court must have an opportunity to consider the requests which are made. We do not see sufficient reason for disturb- ing the now settled practice, which leaves it within the discretion of the court, when a multitude of requests are presented after the arguments have begun, to throw the burden on counsel of calling attention to points not dealt with, at the end of the charge, with the right, of course, to except to such portions of the charge as they deem erroneous. It is not to be supposed that this discretion would be used in such a way as to avoid dealing with an important point that arises or is first thought of at a late stage. McMahon v. O'Connor, 137 Mass. 216. 49 — Chicago Guaranty Fund Life Society v. Ford, 104 Tenn. 533; Chesapeake, O. & S. W. E. Co. v. Hendricks, 88 Tenn. 710; Chesa- peake, O. & 8. W. B. Co. v. Foster, 88 Tenn. 671; Eoller v. Bachman, 5 Lea (Tenn.) 158. 50— Maine. Bradstreet v. Eich, 74 Me. 303; Smart v. White, 73 Me. 332, 40 Am. Eep. 356. Massachusetts. Garrity ' v. Hig- gins, 177 Mass. 414; Phillips' Case, 132 Mass. 233. Missouri. Watson v. Eace, 46 Mo. App. 546. New Jersey. State v. Engeman (N. J. L.), 23 Atl. 676. North Carolina. State v. Barbee, 92 N. C. 820; Davis v. Council, 92 N. C. 725. See also cases cited post this note. * Texas. Freeman v. Puckett, 56 Tex. Civ. App. 126. Vermont. Wetherby v. Foster, 5 Vt. 136; Stanton v. Bannister, 2 Vt. 464. Virginia. Williams v. Com., 85 Va. 607. West Virginia. Jarrett v. Stevens, 36 W. Va. 445; Tully v. Despard, 31 W. Va. 370. "An instruction asked after the rendition of the verdict is not in apt time, and may be disregarded." Davis v. Council, 92 N. C. 725. The defendant has a right to ask for special instructions only before the case is given to the jury. He is not entitled to them as of right, al- though, after asking for them, the 398 Instructions to Juries. [§173 After the jury have been charged, and are leaving the jury box, it is too late for counsel to request the court to make any specific charge in the case. 51 In some cases it has been stated that it is never too late to present requests until the jury have retired, 62 and sometimes it is proper for the court to give additional instructions to the jury after they have retired. This subject is considered in a separate chapter. 63 § 174. Necessity of requesting instructions in proper time. It is necessary, in order that a party may be entitled to instructions requested by him, that such request be pre- sented to the court in apt and proper time, and as a general rule requests not made at the proper time may be refused. 54 jury are given additional instruc- tions by the judge. State v. Rowe, 98 N. C. 629; State v. Barbee, 92 N. C. 820. 51— Tinkham v. Thomas, 34 N. Y. Super. Ct. 236; Tully v. Despard, 31 W. Va. 370. "A ease on appeal stated in substance that, after the court had charged the jury, and they had risen from their seats and were about to retire, defendant's counsel requested that they should wait a moment. The court stated he would not add to his charge, and directed the jury to go on. Said counsel then stated that he desired 'to aBk the court to make some charge * * *, — to charge the jury in certain re- spects.' The court refused to hear the requests." It was held "that it was the right of the counsel to pre- sent his requests; that, while these rights might be forfeited by the omission of counsel to speak in time, and the court had large discretion in this respect, here it was -not exer- cised; but the court, anticipating the object of counsel, decided to deny him, and the refusal of the court to listen to the request was error." Chapman v. McCormick, 86 N. V. 479. 52— Brooks v. State, 96 Ga. 353; Crippen v. Hope, 38 Mich. 344. See also, Billings v. McCoy, 5 Neb. 187. 53— See ch. XIX, post. 54 — Arizona. Territory v. Harper, 1 Ariz. 399, 25 Pac. 528. California. Waldie v. Doll, 29 Cal. 555; Anderson v. Parker, 6 Cal. 197. Illinois. Chicago Anderson Pressed Briek Co. v. Sobkowiak, 148 111. 573; Pittsburgh, C.,"C. & St. L. R. Co. v. Hewitt, 102 111. App. 428, aff'd 202 111. 28; Pennsylvania Co. v. Greso, 102 111. App. 252. Indiana. Benson v. State, 119 Ind. 488; Town of Noblesville v. Vestal, 118 Ind. 80; Grubb v. State, 117 Ind. 277; Evansville & T. H. R. Co. v. Crist, 116 Ind. 446, 2 L. R. A. 450, 9 Am. St. Rep. 865; Hege v. Newsom, 96 Ind. 426; Terry v. Shive- ly, 93 Ind. 413; Fitzgerald v. Jerola- man, 10 Ind. 336; Kackley v. Evans- ville & T. H. R. Co., 7 Ind. App. 169. Missouri. Payne v. Payne, 57 Mo. §174] Bequests for Instructions. 399 It is proper to refuse requests made prematurely as well as requests made too late. 55 Thus it is proper to refuse an instruction which is pre- sented too late when the giving of it would operate to bring undue prominence to its provisions. 56 However, the court is not bound to refuse a requested instruction merely because it is presented at an improper time. In such case, the court, in the exercise of a sound dis- cretion, may either give or refuse the requested instructions, and in either case no error is committed. 57 App. 130; Watson v. Eace, 46 Mo. App. 546. New York. Schuhle v. Cunning- ham, 13 N. Y. St. 81. North Carolina. Shober v. Wheel- er, 113 N. C.' 370; Luttrell v. Martin, 112 N. C. 593; Grubbs v. North Caro- lina Home Ins. Co., 108 N. C. 472, 23 Am. St. Bep. 62; Marsh v. Rich- ardson, 106 N. C. 539; Davis v. Coun- cil, 92 N. C. 725. Pennsylvania. Kinley v. Hill, 4 Watts & S. 426. Vermont. Wilmot v. Howard, 39 Vt. 447, 94 Am. Dec. 338; Cady v; Owen, 34 Vt. 598; Vaughan v. Por- ter, 16 Vt. 266. Virginia. Richmond & M. R. Co. v. Humphreys, 90 Va. 425. Wisconsin. Allen v. Perry, 56 Wis. 178. United States. Atchison, T. & S. F. E. Co. v. Hamble, 101 C. C. A. 270, 177 Fed. 644. Requested instructions must be presented in apt time. Pittsburg, C., C. & St. L. E. Co. v. Hewitt, 102 111. App. 428, aff'd 202 111. 28; Pennsyl- vania Co. v. Greso, 102 111. App. 252. 55— Chesapeake, O. & S. W. R. Co. v. Hendricks, 88 Tenn. 710. Requests made out of time may be refused. Sta.te v. Turley, 87 Vt. 163. 56 — A requested charge not made until after the court has read his charge to the jury comes too late and is properly refused, since it would have brought undue prominence to its provisions. James v. State, — Tex. Cr. App. — , 167 S. W. 727. 57— Massachusetts. Phillips ' Case, 132 Mass. 233; Ela v, Cockshott, 119 Mass. 416. Minnesota. Shartle v. City of Min- neapolis, 17 Minn. 308; Sanborn v. School Dist. No. 10, 12 Minn. 17. Mississippi. Wood v. State, 64 Miss. 761. Missouri. Buck v. People 's St. Ry. & Elec. Light & Power Co., 108 Mo. 179; Cluskey v. City of St. Louis, 50 Mo. 89; State v. Bickel, 7 Mo. App. 572. New Jersey. Engeman v. State, 54 N. J. L. 247. New York. Chapman v. McCor- mick, 86 N. Y. 479. North Carolina. Shober v. Wheel- er, 113 N. C. 370; Ward v. Albemarle & R. R. Co., 112 N. C. 168; State v. Barbee, 92 N. C. 820. Texas. Missouri, K. & T. E. Co. v. Harrison, — Tex. Civ. App. — , 120 S. W. 254. Vermont. Fadden v. McKinney, 87 Vt. 316. ' West Virginia. Jarrett v. Stevens, 400 Instructions to Juries. [§174 The rules of court as to presenting requests are permis- sive in their nature and may be waived. 58 While this is undoubtedly the general rule, it is not rig- idly adhered to in all cases. Circumstances may exist, such as matters arising in the course of the argument, or errors or omissions in the general charge, making it error to refuse to give a requested instruction, although the request was not made at a certain time. 59 36 W. Va. 445; Tully v. Despard, 31 W. Va. 370. United States. Manhattan Life Ins. Co. v. Francisco, 17 Wall. 678, 21 L. Ed. 700; Atchison, T. & S. F. B. Co. ,v. Hamble, 101 C. C. A. 270, 177 Fed. 644. The court may in its discretion waive the rule and consider re- quests made out of time, but it is not required to do so. Fadden v. McKinney, 87 Vt. 316. 58 — A rule of court as to the time of presenting requests for instruc- tions is permissive only, and may be waived by the court. Sanborn v. School Dist. No. 10, 12 Minn. 17. 59 — California. People v. Demas- ters, 105 Cal. 669, 39 Pac. 35; People v. Williams, 32 Cal. 280; People v. Sears, 18 Cal. 635. Illinois. See Bochat v. Knisely, 144 111. App. 551. Massachusetts. Brick v. Bqsworth, 162 Mass. 338; McMahon v. O'Con- nor, 137 Mass. 216; Bla v. Coekshott, 119 Mass. 416. Michigan. Crippen v. Hope, 38 Mich. 344; People v. Garbutt, 17 Mich. 25. • Minnesota. Sanborn v. School Dist. No. 10, 12 Minn. 17. Nebraska. Billings v. McCoy, 5 Neb. 188. New York. Chapman v. McCqr- mick, 86 N. Y. 479; Winne v. Brun- dage, 40 N. Y. Supp. 225. See also, Walsh v. Carter-Crume Co., 126 App. Div. (N. Y.) 229. Wisconsin. Carey v. Chicago, M. & St. P. By. Co., 61 Wis. 76. West Virginia. Sterling Organ Co. v. House, 25 W. Va. 65. "A rule of a circuit court, 'that instructions to a jury will not be en- tertained or considered unless sub- mitted before the conclusion of the argument of the case,' is a reason- able rule, and tends to the promo- tion of justice, and should be en- forced, unless in a particular case there exist peculiar circumstances, which would render the enforcement of this rule unjust to one of the parties, and in such a case the court ought to disregard the rule, and grant or refuse instructions, though asked too late under the rule. ' ' Ster- ling, Organ Co. v. House, 25 W. Va. 65. A rule of court requiring re- quests for instructions to be submit- ted to the opposite cotnsel before final argument will not justify a refusal to charge upon a material point in a criminal case. People v. Williams, 32 Cal. 280. The court may refuse to entertain a request because not presented at the time fixed by rule of court, but, if the request is entertained, the rule is waived, and it becomes the duty §174] Requests foe Instkuctions. 401 But where a full and fair opportunity has been afforded to counsel to submit their requests for instructions, a very clear case of abuse of discretion must be made out to call for any interference with the refusal of the trial judge to receive other requests, the presentation of which has been unneces- sarily delayed. 60 At the close of the evidence, and before the argument, the granting of time to prepare special instructions is a matter resting in the sound discretion of the trial court. 61 Where the refusal to give an instruction because not pre- sented in time would work injustice, the court should either of the court to charge as requested, if the request is otherwise proper. Sanborn v. School Dist. No. 10, 12 Minn. 17. On a trial for assault with intent to commit mayhem, it was held error for the court to refuse to charge on simple assault, although the request was not made until after argument, and a rule of court re- quired requests to be presented be- fore argument. People v. Demasters, 105 Cal. 669, 39 Pac. 35. Instructions which are reasonable and pertinent, and are submitted be- fore the jury retire, should be given, notwithstanding there is a general rule of the court that requests for instructions must be submitted be- fore the summing up. Billings v. McCoy, 5 Neb. 187. "Where instructions are asked by either party before the jury retire, which are unobjectionable, pertinent to the issue, and necessary for the jury to consider in making up their verdict, they should be given by the court, notwithstanding a rule requir- ing all instructions to be submitted before the commencement of the ar- gument. ' ' Billings v. McCoy, 5 Neb. 188. "It is error in the court, at the Blashfield Vol. 1—26 close of its charge to the jury, to refuse to listen to a written request, at the instance of counsel to further, charge the jury, regardless of the character of the request. ' ' Wood v. McGuire's Children, 17 Ga. 303. Where an instruction, proper and necessary to the trial, is inadver- tently overlooked, the court should not refuse to give it, even after ar- gument, unless giving it at that time will unduly prejudice the opposite party. Wills v. Tanner, 13 Ky. L. Eep.. 741. Where his attention is called to certain legal points involved in the case by instructions asked, the judge, although he refuses such instructions, because not presented within the time prescribed by the rules, is bound in his charge to the jury to submit the law applicable to the case as made by the evidence. Allen v. Perry, 56 Wis. 178. 60— 'Neil v. Dry Dock, E. B. & B. B. Co., 129 N. Y. 130; Schuhle v. Cunningham, 14 Daly (N. Y.) 404; Williams v. Com., 85 Va. 607; Tully v. Despard, 31 W. Va. 370. 61— Phillips v. Thorne, 103 Ind. 275; Atchison, T. & S. P. E. Co. v. Frazier, 27 Kan. 463. 402 Insteuctions to Jubies. [§174 waive its rule and give the instruction, or make such expla- nations of its own as would put the law correctly before the jury. 62 ' ' The object of the law is to administer justice, and rules of court for conducting trials should not be so construed as to prevent a fair submission of a case to the jury." 63 An instruction is improperly refused as not presented in time when the time is not fixed by a rule of court. 64 § 175. General requisites and form of requested instruc- tions. Eequested instructions should conform to the general rules as to the requisites and form of instructions which have been stated in preceding chapters of this work. 65 In order to entitle a party to insist that a requested in- struction be given to the jury, such instruction must be cor- 62— People v. Keefer, 18 Cal. 636. Held error to refuse instruction defining manslaughter because re- quested too late, since no rule of court or order of procedure should be technically followed to deprive a defendant on trial for a grave crime of any right. State v. Bloom, 91 Kan. 156, 136 Pac. 951. 63— Billings v. McCoy, 5 Neb. 191. ' ' To refuse an instruction asked for soon after the court had refused one deemed deficient in form, but con- taining the same legal principle, be- cause tendered after the time fixed by the court for the presentation of instructions, is not a proper exercise of the discretion of the court, where the giving it eould not injure the opposite party, and refusing to give it was to deprive the party of the application of a legal principle to which he was entitled by the facts of the case." Hill v. Wright, 23 Ark. 530. "Eules of court are but a means to accomplish the ends of justice, and it is always in the power of the court to suspend its own rules, or except a particular case from their operation, whenever the purposes of justice require it." People v. De- masters, 105 Cal. 669, 39 Pac. 35, quoting, with approval, Pickett v. Wallace, 54 Cal. 148. See also, Peo- ple v. Williams, 32 Cal. 280. 64 — Chicago Anderson Pressed Brick Co. v. Sobkowiak, 148 111. 573, aff'g 45 111. App. 317. "A rule could only exist in writ- ing of record, as, when thus adopted, it has the force of law. The rule could not exist in the breast of the judge alone, but must be announced as a rule made of record, and is then applicable to all cases without dis- cretion, unless an exercise of dis- cretion is reserved in the rule." Chicago Anderson Pressed Brick Co. v. Sobkowiak, 148 111. 573. 65 — See chs. IV, V, ante. , §175] Requests tor Instructions. 403 rect both, in form and substance, and such that the court might give to the jury without modification or omission. If the instruction, as requested, is objectionable in any respect, its refusal is not error. 66 66— Alabama. Sloss-Sheffield Steel & Iron Co. v. Sampson, 158 Ala. 590; Cochran v. Kimbrough, 157 Ala. 454; Miller v. State, 107 Ala. 40; Barnes v. State, 103 Ala. 44; Johnson v. King, 20 Ala. 270; Long v. Rodgers, 19 Ala. 321. Arkansas. Randleman v. Taylor, 94 Ark. 511, 140 Am. St. Rep. 141. California. People v. Harlan, 133 Cal. 16, 65 Pae. 9. Colorado. Greeley Irr. Co. v. Von Trotha, 48 Colo. 12, 108 Pac. 985. Georgia. Murphy v. Central of Georgia R. Co., 135 Ga. 194. Illinois. Kenny v. Marquette Ce- ment Mfg. Co.,. 243 111. 396, aff'd 149 111. App. 1173; Chicago, R. I. & P. Ry. Co. v. Clough, 134 111. 586; Castelano v. Chicago & J. B. Ry. Co., 149 111. App. 250. Indiana. Ricketts v. Harvey, 106 Ind. 566; Goodwin v. State, 96 Ind. 566; Roots v. Tyner, 10 Ind. 87; Lawrenceburgh & U. M. R. Co. v. Montgomery, 7 Ind. 474; Kackley v. Evansville & T. H. R. Co., 7 Ind. App. 169. Kansas. Condiff v. Kansas City, Ft. S. & G. R. Co., 45 Kan. 256, 25 Pac. 562; Diekson v. Randal, 19 Kan. 214; Douglas v. Wolf, 6 Kan. 88; Western U. Tel. Co. v. Getto-Mc- Clung Boot & Shoe Co., 9 Kan. App. 863, 61 Pac. 504. Maine. Duley v. Kelley, 74 Me. 556. Maryland. Baltimore & O. R. Co. v. Resley, 14 Md. 424. Michigan. Clintsman v. Alfred J. Brown Seed Co., 127 Mich. 280. Missouri. Kendrick v. Ryus, 225 Mo. 150, 135 Am. St. Rep. 585. New York. Hodges, v. Cooper, 43 N. Y. 216; Bagley v. Smith, 10 N. Y. 489, 61 Am. Dee. 756; Brignoli v. Chicago & G. E. Ry. Co., 4 Daly 182; Walker v. Gilbert, 2 Daly 80; Keller v. New York Cent. R. Co., 24 How. Pr. 172; Hayden v. Wheeler & Tappan Co., 66 Hun 629; Wright v. Paige, 3 Keyes 581; Holly wodti v. People, 3 Keyes 55, 2 Abb. Dee. 376; People v. Holmes, 6 Park. Cr. R. 25. Ohio. Baltimore & O. R. Co. v. Schultz, 43 Ohio St. 270, 54 Am. Rep. 805. Oklahoma. Sanders v. Cline, 22 Okla. 154, 101 Pac. 267. Texas. Rateliff v. Baird, 14 Tex. 43; Texas & N. O. R. Co. v. Bean, 55 Tex. Civ. App. 341; Lyon v. Bed- good, 54 Tex. Civ. App. 19. Utah. Evans v. Oregon Short Line R. Co., 37 Utah 431, Ann. Cas. 1912 C 259n, 108 Pac. 638. Vermont. Underwood v. Hart, 23 Vt. 120; Vaughan v. Porter, 16 Vt. 266. Wisconsin. Fenelon v. Butts, 53 Wis. 344. United States. Violett v. Patton, 5 Cranch 142, 3 L. Ed. 61; Catts v. Phalen, 2 How. 376, 11 L. Ed. 306; , United States v. Metropolis Bank, 15 Pet. 377, 10 L. Ed. 774; Winn v. Patterson, 9 Pet. 663, 9 L. Ed. 266; Scott's Lessee v. Ratliffe, 5 Pet. 81, 8 L. Ed. 54; Patterson v. Jenks, 2 Pet. 216, 7 L. Ed. 402; Columbian Ins. Co. v. Lawrence, 2 Pet. 25, 7 L. Ed. 335; Elliott v. Piersol's Lessee, 404 Instructions to Juries. [§175 Accordingly, the court may refuse erroneous instruc- tions, 67 and where a part only of a requested instruction is erroneous, the whole may be properly refused, 68 and where 1 Pet. 328, 7 L. Ed. 164; Buck v. Chesapeake Ins. Co., 1 Pet. 151, 7 L. Ed. 90; Haffin v. Mason, 15 Wall. 671, 21 L. Ed. 196; Brooks v. Mar- bury, 11 Wheat. 78, 6 L. Ed. 423. "Prayers should be so framed as to instruct, not to embarrass, juries, and, where the court thinks they may have the latter effect, it is not its duty to place a construction on the language employed by counsel, but may reject the prayers as offered." Baltimore & O. B. Co. v. Eesley, 14 Md. 424. 67 — ' ' The court may refuse an in- struction if satisfied that it is er- roneous, although it may have pre- viously indicated that it would be given." Louisville, N. A. & C. By. Co. v. Hubbard, 116 Ind. 193, citing City of Logansport v. Dykeman, 116 Ind. 15. A requested instruction that does not state correctly the facts which it assumes is properly refused. Conely v. Wood, 73 Mich. 203. "To constitute error in the re- fusal of a court to charge a jury as requested, the proposition requested and refused must be absolutely true under all reasonably conceivable cir- cumstances. " Cleveland & P. B. Co. v. Sargent, 119 Ohio St. 438. ' ' Where a party relies upon an ex- ception for refusing to charge as requested, the request must be per- fectly proper as an entirety. If it embraces a single idea or view which ought not to be presented, it destroys the value of the exception, although a part of the legal proposition em- braced, if detached and presented separately, might be entirely prop- er." People v. Holmes, 6 Park. Cr. B. (N. Y.) 25. A correct and pertinent statement of law, though abstract, should be given, if requested. Cleveland, P. & E. B. Co. v. Nixon, 21 Ohio Cir. Ct. 736, 12 Ohio Cir. Dec. 79. 68— Alabama. Baker v. State, 49 Ala. 350. Arkansas. American Fire Ins. Co. v. Haynie, 91 Ark. 43; Stanton v. State, 13 Ark. 317. , California. Marriner v. Dennison, 78 Cal. 202, 20 Pac. 386; Garlick v. Bowers, 66 Cal. 122, 4 Pac. 1138. < Connecticut. Charter v. Lane, 62 Conn. 121; State v. Stanton, 37 Conn. 423. Florida. Wooten v. State, 24 Pla. 355. Georgia. City of Atlanta v. Buch- anan, 76 Ga. 585; Sims v. Seheussler, 5 Ga. App. 850. Illinois. Kenny v. Marquette Ce- ment Mfg. Co., 243 111. 396, aff'd 149 111. App. 173; Denman v. Bloomer, 11 111. 177. Indiana. Town of New Castle v. Grubbs, 171 Ind. 482; McCammon v. Cunningham, 108 Ind. 545; Christian v. State, 7 Ind. App. 417. Kansas. State v. Cassady, 12 Kan. 551; Kansas Ins. Co. v. Berry, 8 Kan. 159; Douglas v. Wolf, 6 Kan. 88; City of Topeka v. Tuttle, 5 Kan. 426; Mayberry v. Kelly, 1 Kan. 116. Maine. Tower v. Baslam, 84 Me. 86; Snow v. Penobscot Biver Ice Co., 77 Me. 55; Grand Trunk By. Co. v. Latham, 63 Me. 177; State v. Cleaves^ 59 Me. 298, 8 Am. Bep. 422; Bryant v. Crosby, 40 Me. 9; Tib- betts v. Baker, 32 Me. 25; Atkinson §175] Requests fob Instkuctions. 405 the charge requested is erroneous the court is not required to v. Snow, 30 Me. 364; Inhabitants of Thomaston v. Inhabitants of War- ren, 28 Me. 289. Michigan. Bedford v. Penny, 58 Mich. 424. Minnesota. Bond v. Corbett, 2 Minn. 248; Castner v. The Dr. Frank- lin, 1 Minn. 73 (Gil. 51). Mississippi. Doe d. Martin v. King's Heirs, 3 How. 1'25; Dickson v. Moody, 2 Smedes & M. 17. Missouri. Voelker v. Hill-O'Meara Const. Co., — Mo. App. —,-131 S. W. 907; Lail v. Pacific Exp. Co., 81 Mo. App. 232. . Nevada. State v. Anderson, 4 Nev. 265. New York. People v. Holmes, 6 Park. Cr. B. 25. Ohio. Eckels v. State, 20 Ohio St. 508; Inglebright v. Hammond, 19 Ohio 337; Walker v. Devlin, 2 Ohio 593. South Carolina. Bugsdale v. South- ern Ey. Co., 60 S. C. 381; State v. Tarrant, 24 S. C. 593; Carter v. Columbia & G. B. Co., 19 S. C. 20, 45 Am. Bep. 754; Gunter v. Granite- ville Mfg. Co., 15 S. C. 454. Tennessee. East Tennessee, V. & G. B. Co. v. Gurley, 12 Lea 46; East Tennessee, V. & G. B. Co. v. Pain, 12 Lea 35; Sommers v. Mississippi & T. E. Co., 7 Lea 205; Hills v. Good- year, 4 Lea 233, 40 Am. Bep. 5. Texas. Brownson v. Scanlan, 59 Tex. 222; Hardy v. De Leon, 5 Tex. 211; Houston & T. C. By. Co. v. Kel- ley, 13 Tex. Civ. App. 1; Dallas Con- solidated Traction Ey. Co. v. Hur- ley, 10. Tex. Civ. App. 246; Lanyon v. Edwards (Tex. Civ. App.) 26 S. W. 524. Vermont. Underwood v. Hart, 23 Vt. 120; Vaughan v. Porter, 16 Vt. 266. Virginia. Brooke v. Young, 3 Band. 106. Wisconsin. Stucke v. Milwaukee & M. B. Co., 9 Wis. 202; Sterling v. Eipley, 3 Chand. 166, 3 Pin. 155. United States. Catts v. Phalen, 2 How. 376, 11 L. Ed. 306; Monarch Cycle Mfg. Co. v. Boyer Wheel Co., 44 C. C. A. 523, 105 Fed. 324. "The court is not bound to select the good from bad law in an instruc- tion asked, especially when it gives the law applicable to the case other- wise." City of Topeka v. Tuttle, 5 Kan. 426. "Where an instruction is asked which, in a disjunctive statement, presents two conditions of acquittal, and there is error in one of these conditions, the court may properly refuse the whole instruction." State v. Cassady, 12 Kan. 551. "A request to charge, which be- gins with a recital of facts as un- . disputed, and closes with several propositions which the court is ex- pected to charge 'upon these undis- puted facts,' must be considered a single request; and if any part of the statement of facts is incorrect, the whole request must fail, and the judge is right in refusing to give it." Bedford v. Penny, 58 Mich. 424. A court is never bound to regard written requests to charge, "unless they are couched in such terms as to be sound to the full extent. The fact that some sound law might be extracted from the requests, or that, in general terms, they may be sound ■law, with certain qualifications, is not enough. They must be wholly 406 Instructions to Juries. [§175 correct it and prepare a proper special charge, 89 especially in jurisdictions where the court is required to give instruc- tions in the exact words in which they are requested. 70 -Accordingly, requested charges containing improper prop- ositions may be refused when the correct portions are not readily separable. 71 sound law, and without any neces- sary qualification, or it is not error" to refuse them. Redfield, J., in Vaughan v. Porter, 16 Vt. 266. When an instruction is prayed for as an entirety, part of which is prop- er and part improper, it is generally better to give the good and refuse the bad only, but it is not error to decline doing so; for, being asked as an entire thing, it may be treated as an entirety, and refused if a portion of it is inadmissible. Walker v. Devlin's Lessee, 2 Ohio 593; French v. Millard, 2 Ohio 45; Mayberry v. Kelly, 1 Kan. 116. 69 — When the court has rejected a prayer incorrectly defining malice, it is not bound ex mero motu to give any definition of it. Garvey v. Way- son, 42 Md. 178. Where a special charge is incor- rect as drawn, it is not the duty of the court to prepare and give a proper special charge, and if the charge is incorrect it is not the duty of the court to give it. Missouri, K. & T. Ry. Co; of Texas v. Dunn, — Tex. Civ. App. — , 157 S. W. 434. 70 — United States Life Ins. Co. v. Lesser, 126 Ala. 568; Stanton v. State, 13 Ark. 317; Lyle v. McCor- mick Harvesting Mach. Co., 108 Wis. 81, 51 L. R. A. 906; Castello v. Land- wehr, 28 Wis. 522. "Counsel desiring additional in- structions * * * should present them to the court in the very lan- guage in which he wants them giv- en." Heilbron v. State, 2 Tex. App. 538. Since Rev. St., art. 1321 (see Sayle's, Ann. Civ. St. Texas art. 1974) provides that instructions given to the jury may be carried with them in their retirement, the court may refuse to give requested instructions on the ground that the good are written with the bad, on the same piece of paper, such ground of refusal being stated at the time of refusal. Missouri Pac. Ry. Co. v. King, 2 Tex. Civ. App. 122. 71 — It is not error to refuse a spe- cial charge, correct in its application of law and fact, when presented with other charges which are objection- able, the whole being attached to- gether, though on separate papers, and in such a manner as not to be readily separated. International & G. N". R. Co. v. Neff (Tex. Civ. App.), 26 S. W. 784. In preparing instructions, attor- neys must take the risk of putting them in proper form' for the court to act upon separately, and, if two propositions be so united that the court must pass upon both at the same time, one being correct and the other not, the judge will not be required to reconstruct his charge so as to cull out that which ought to be given, but may refuse the entire charge as written. Burnham v. Lo- gan, 88 Tex. 1; Missouri Pac. Ry. Co. v. Cullers, 81 Tex. 394; Hamburg v. Wood, 66 Tex. 168; Brownson v. §175] Bequests foe Instructions. 407 The specific instructions desired should be requested, and a mere general request for instructions may be disre- garded. 72 When a party makes request for the giving of certain in- structions to the jury he should' separate such charges, so that each one will cover but a single matter, and give each a separate number, so that it may be considered by itself and referred to by number. 73 In some jurisdictions it is held that a request which is properly refused for defects in form or- substance may be sufficient to call the attention of the court to the matter upon which an instruction is desired, and make a failure to give an appropriate instruction thereon error. 74 Scanlan, 59 Tex. 222; Wells v. Bar- nett, 7 Tex. 584. All the special charges -were pre- sented together to the court, and constituted different paragraphs of the same paper. The first paragraph did not correctly present the law of the case, and therefore the court did not err in rejecting the entire paper, offered. The court was under no obligation to separate the para- graphs, and give that which was correct, and refuse that which was error. Yarborough v. Weaver, 6 Tex. Civ. App. 215. "Where a number of requested charges, which, in so far as they con- tained correct propositions, were em- bodied in the main charge, were written on the same sheets, and were refused by the judge, who indorsed thereon as the reasons for refusal that they were so written, and that the substance of those correct was given in his main charge, it was held that this amounted to a requirement by the court that such of the charges as were correct should be submitted separately from the others, that such action was within judicial discre- tion, and that there was no error in refusing to give the charges for the reasons stated in the indorsement of refusal." Missouri Pac. By. Co. v.. King, 2 Tex. Civ. App. 122. 72— Simonds v. Oliver, 23 Mo. 32. "A party asking instructions of the court to the jury as to the law should .specify the points, and not ask instructions generally as to the law arising out of a complicated mass of evidence." Kitty v. Fitz- hugh, 4 Rand. (Va.) 600. 73— Haekett v. Straw, 33 S. D. 17. 74— People v. Tapia, 131 Cal. 647, 63 Pac. 1001; Atchison, T. & S. F. E. Co. v. Woodson, 79 Kan. 567, 100 Pac. 633; Brown v. Patterson, 224 Mo. 639; State v. Moore, 160 Mo. 443; Cleveland v. Empire Mills, 6 Tex. Civ. App. 479; Gulf, C. & S. F. Ey. Co. v. Hill (Tex. Civ. App.), 58 S... W. 255; Carpenter v. Dowe (Tex. Civ. App.), 26 S. W. 1002. In Virginia and West Virginia it is held that if an instruction asked is equivocal, but is open to a con- struction by the jury which would make it a correct rule of law to be applied to the ease, a refusal to give 408 Instructions to Juries. [§ 175 Where special requests to charge are asked as a series, if any one of such requests is bad or improper the court may refuse them all. 75 the instruction will be misleading, and, though the instruction is also open to a construction which would make it an incorrect rule, the court should give it with such an explana- tion as will insure its being under- stood by the jury in the proper sense. Ward v. Churn, 18 Grat. (Va.) 801, 98 Am. Dec. 749; Peshine v. Shep- person, 17 Grat. (Va.) 473; Balti- more & O. R. Co. v. Polly, 14 Grat. (Va.) 447; Carrieo v. West Virginia Cent. & P. Ry. Co., 35 W. Va. 389; Gas Co. v. Wheeling, 8 W. Va. 371. 75— Alabama. Tennessee Coal, Iron & Railroad Co. v. Bonner, 164 Ala. 57; Stowers Furniture Co. v. Brake, 158 Ala. 639; Price v. State, 107 Ala. 161; Eagle & P. Mfg. Co. v. Gibson, 62 Ala. 369; Slater v. Carter, 35 Ala. 679. Arkansas. Hicks v. Maness, 19 Ark. 701. California. Williamson v. Tobey, 86 Cal. 497, 25 Pac. 65; Smith v. Richmond, 19 Cal. 476. Colorado. Gill v. Schneider, 48 Colo. 382, 110 Pac. 62. Connecticut. Marlborough v. Sis- son, 23 Conn. 54. Florida. Baker v. Chatfield, 23 Fla. 540. Georgia. Grace v. McKinney, 112 Ga. 425; Roberts v. State, 83 Ga. 369; Hunt v. Pond, 67 Ga. 578; Head v. Bridges, 67 Ga. 228. Maine. Atkinson v. Snow, 30 Me. 365. Maryland. Blumhardt v. Rohr, 70 • Md. 328; Marshall v. Haney, 4 Md. 498, 59 Am. Dec. 92; Greenway v. Turner, 4 Md. 296. Michigan. Bedford v. Penny, 58 Mich. 424; Westchester Fire Ins. Co. v. Earle, 33 Mich. 143; Sword v. Keith, 31 Mich. 247. Minnesota. Simmons v. St. Paul & C. Ry. Co., 18 Minn. 184; Village of Mankato v. Meagher, 17 Minn. 265 (Gil. 243); Bond v. Corbett, 2 Minn. 248 (Gil. 209); Castner v. The Dr. Franklin, 1 Minn. 73 (Gil. 51). New Jersey. Consolidated Trac- tion Co. v. Chenowith, 58 N. J. L. 416. New York. Palmer v. Holland, 51 N. Y. 416, 10 Am. Rep. 616; Magee v. Badger, 34 N. Y. 247, 90 Am. Dec 691n; Gutwillig v. Zuberbier, 41 Hun 361. North Carolina. Johnston County Sav. Bank v. Chase, 151 N. C. 108. Ohio. Inglebright v. Hammond, 19 Ohio 337; Fuller v. Coats, 18 Ohio 343; Holmes v. Ashtabula Rapid Transit Co., 10 Ohio Cir. Dec. 638. Texas. Burnham v. Logan, 88 Tex. 1; Hamburg v. Wood, 66 Tex. 168; Wall v. Lubbock, 52 Tex. Civ. App. 405; Yarborough v. Weaver, 6 Tex. Civ. App. 215; McWhirter v. Allen, 1 Tex. Civ. App. 649; Sabine & E. T. Ry. Co. v. Ewing, 1 Tex. Civ. App. 531; Fordyce v. Yarborough, 1 Tex. Civ. App. 260. Utah. People v. Thiede, 11 Utah 241, 39 Pac. 837. United States. United States v. Hough, 103 U. S. (13 Otto) 71, 26 L. Ed. 305; Springer v. United States, 102 U. S. (12 Otto) 586, 26 L. Ed. 253; Worthington v. Mason, 101 U. S. (11 Otto) 149, 25 L. Ed. 848; Eastern Transp. Line v. Hope, 95 U. S. (5 Otto) 297, 24 L. Ed.. 477; Indianapolis & St. L. R. R. v. Horst, §175] Requests foe Instbtjctions. 409 A request containing several alternative propositions of law, one of which is incorrect, may be refused entirely. 76 It has been held, however, that where a request to charge, though in form one instruction, contains in fact several dis- tinct and separable propositions, some of which are correct and should be given, and others are incorrect, the court should not reject the whole but should separate them, giving the correct and refusing the incorrect propositions. 77 A requested instruction which, although correct as a prop- osition of law, is not pertinent to the issues, may be refused. 78 The same is true as to requests for instructions which, under the circumstances, would be uncertain, ambiguous or misleading unless qualified or explained, 79 or which are in- 93 TJ. S. (3 Otto) 291, 23 L. Ed. 898; Beaver v. Taylor, 93 U. S. (3 Otto) 46, 23 L. Ed. 797; Johnston v. Jones, 1 Black. (U. S.) 210, 17 L. Ed. 117; Lincoln v. Claflin, 7 Wall. 132, 19 L. Ed. 106; Harvey v. Tyler, 2 Wall. 328, 17 L. Ed. 871; Mann Boudoir Car Co. v. Dupre, 4 C. C. A. 540, 54 Fed. 646. "When a party requests charges which, though separately numbered, were not separately asked, and any of the charges thus requested are erroneous, the court is not required to distinguish between the good and the bad, but may refuse them all." Eagle & P. Mfg. Co. v. Gibson, 62 Ala. 369. 76— Richard v. State, 42 Fla. 528; Boyden v. Fitchburg E. Co., 72 Vt. 89. 77— Sword v. Keith, 31 Mich. 247; Lawrence v. Hudson, 12 Heisk. (Tenn.) 671; Burnham v. Logan, 88 Tex. 1; Peshine v. Shepperson, 17 Grat. (Va.) 472, 94 Am. Dec. 468. Contra, Slater v. Carter, 35 Ala. 6T9. "If a defendant, in his prayer for instructions, sets up a broader right than he is entitled to, the judge should not deny it altogether, but should explain to the jury the true extent of his right. ' ' Amer v. Long- streth, 10 Pa. St. 145. But compare Hodges v. Cooper, 43 N. Y. 216. 78 — Wahlgren v. Market St. By. Co., 132 Cal. 656, 62 Pac. 308; Lam- kin v. Palmer, 164 N. Y. 201, aff'g 24 App. Div. (N. Y.) 255. 79 — Alabama. Southern By. Co. v. Lynn, 128 Ala. 297; Lafayette By. Co. v. Tucker, 124 Ala. 514; Adams v. State, 52 Ala. 379; Partridge v. Forsyth, 29 Ala. 200; Dunlap v. Bobinson, 28 Ala. 100; Godbold v. Blair, 27 Ala. 592; Bolston v. Lang- don, 26 Ala. 661; Swallow v. State, 22 Ala. 20. Georgia. Macon Consol. St. R. Co. v. Barnes, 113 Ga. 212. Iowa. Hall v. Hunter, 4 G. Greene 539. Maryland. Stockton v. Frey, 4 Gill 406, 45 Am. Dec. 138; Whiteford v. Bruckmyer, 1 Gill 127, 39 Am. Dec. 640n. Ohio. Ohliger v. City of Toledo, 410 Instructions to Juries. [§175 complete, 80 although a party is not required to state all the law of his case in a single instruction. 81 20 Ohio Cir. Ct. R. 142, 10 Ohio Cir. Dec. 762. Virginia. Kincheloe v.' Tracewells, 11 Grat. 587; Levasser v. Washburn, 11 Grat. 572. "The court never errs in refusing a charge requiring explanation, or which has a tendency to mislead or confuse the jury, e. g., as where the court in its charge enumerates sev- eral facts connected with a criminal transaction, upon consideration of which the jury might pronounce a verdict of guilty, and the defendant singles out one of these facts, and requests a charge that, 'from this fact alone,' guilt cannot be in- ferred." Adams v. State, 52 Ala. 379. A request setting forth a propo- sition which is an absurdity is prop- erly refused, "though it may be manifest that this is the result of a palpable and unintentional error on the part of counsel in framing the request." Macon Consol. St. R. Co. v. Barnes, 113 Ga. 212. 80 — An incomplete and meaning- less request as written may be re- fused. Hooper, v. State, 106 Ala. 41. A request for instructions "is properly refused when it does not state the question with sufficient full- ness. ' ' Ordway v. Sanders, 58 N. H. 132. An instruction that does not fully and perfectly state the facts in- volved may be refused. Phenix Ins. Co. v. Woland, 48 111. App. 535. "Instructions which profess to fully state the law upon a particu- lar Bubject, but which omit some ma- terial fact, essential to the validity of the hypothesis, may b'e properly refused." Pennsylvania Co. v. Weddle, 100 Ind. 138. A requested instruction on the whole case must be so framed as not to exclude the points raised by the evidence of the adverse party. Evans Garden Cultivator Co. v. Mis- souri, K. & T. Ry. Co., 64 Mo. App. 305, 2 Mo. App. 973. A charge predicated on an imper- fect statement of the facts and cir- cumstances bearing on the point to which they were directed is prop- erly refused, as where, on a question of negligence, charges devolved on the plaintiff the duty of giving notice to the engineer in charge of the engine. Even if such duty ex- isted, it might be dispensed with in certain cases, and circumstances tending to show that it was dis- pensed with are proper to be left to the jury. Jenkins v. Little Miami R. Co., 2 Disn. (Ohio) 49. In a proceeding to contest a will, an instruction that "the court charges the jury, on behalf of con- testants, that the burden of proving the due execution of the will S., and, if he has failed to prove that the will was duly executed to the reasonable •satisfaction of the jury, the jury must find for the contestant," is properly refused as incomplete, though what the court meant is ap- parent. Schieffelin v. Schieffelin, 127 Ala. 14. 81— Chicago City Ry. Co. v. Schmidt, 217 111. 396, aff'g 117 111. App. 213. "The plaintiff is only obliged to state the law correctly in his in- structions applicable to his theory of the case, and is not bound, in §175] Requests fob Instbuctions. 411 Where a requested instruction has been given, an incon- sistent instruction asked by the same party is properly re- fused, although the latter instruction is in itself correct, 82 and argumentative instructions are properly refused. 83 Requests singling out and giving undue prominence to issues, theories or evidence should be refused, 84 and it is not error to refuse an instruction, relevant to a question about which there is no dispute. 85 A party cannot complain that the court did not, of its.own motion, modify and correct the request, and then give it as corrected. No such duty rests upon the court. 86 every instruction, to anticipate and exclude every possible defense." Mt. Olive & S. Coal v. IJademaeher, 190 111. 538, aff'g 92 111. App. 442; Mitchell v. Milholland, 106 111. 175. "In preparing instructions, each party may assume any reasonable hypothesis in relation to the facts of the case; and ask the court to de- clare the law as applicable to it; and it is error to refufte an instruction so framed because the case supposed does not include some other hypoth- esis equally rational." People v. Taylor, 36 Cal. 255. 82 — Healey v. Bupp, 28 Colo. 102, 63 Pac. 319-. 83 — Singleton v. State, 106 Ala. 49. 84 — -Kenny v. Inhabitants of Ips- wich, 178 Mass. 368; People v. Pin- ley, 38 Mich. 482; Thornton's Ex'rs v. Thornton's Heirs, 39 Vt. 122. ' ' The omission to give requests for instruction which tend to distract' the jury by calling special attention to metaphysical subtleties or par- ticular testimony," is not error. People v. Pinley, 38 Mich. 482. 85 — Shartle v. City of Minneapo- lis, 17 Minn. 308 (Gil. 284). 86 — Alabama. Callan v. McDan- iel, 72 Ala. 96; Savery v. Moore, 71 Ala. 236; City Nat. Bank of Selma v. Burns, 68 Ala. 267, 44 Am. Bep. 138; Farrish v. State, 63 Ala. 164; Duvall v. State, 63 Ala. 12; Dotson v. State, 62 Ala. 141, 34 Am. Bep. 2; Green v. State, 59 Ala. 68; Leach v. Bush, 57 Ala. 145; Caldwell v. Par- mer's Adm'r, 56 Ala. 405; Mc Wil- liams v. Bodgers, 56 Ala. 87; Swal- low v. State, 22 Ala. 20; Carmichael v. Brooks, 9 Port. 330; Morrison v. Wright, 7 Port. 67; Bives v. McLosky, 5 Stew. & P. 330. Colorado. Blackmore v. Neale, 15 Colo. App. 49, 60 Pac. 952. Illinois. Bolfe v. Eich, 149 111. 436, aff'g 46 111. App. 406; Coney v. Pepperdine, 38 111. App. 403; Van- landingham v. Huston, 8 HI. (4 Gilm.) 125. Indiana. Knapp v. State, 168 Ind. 153, 11 Ann. Cas. 604; Louisville, N. A. & C. By. Co. v. Shanks, 132 Ind. 395; Eogers v. Leyden, 127 Ind. 50; Mosier v. Stoll, 119 Ind. 244; Bick- etts v. Harvey, 106 Ind. 564; Over v. Schiffling, 102 Ind. 191; Goodwin v. State, 96 Ind. 550; Toops v. State, 92 Ind. 13; Kluse v. Sparks, 10 Ind. App. 444; Goodwine v. State, 5 Ind. 412 Instructions to Juries. [§176 § 176. Written request. In many states, statutes exist requiring instructions to be in writing, 87 and in many jurisdictions requests for instruc- tions must be presented in writing, and if not so presented their refusal is not error, though the instruction is otherwise correct. 88 i App. 63; Howlett v. Dilts, 4 Ind. App. 23. Iowa. Keenan v. Missouri State Mut. Ins. Co., 12 Iowa 126; Morri- son v. Myers, 11 Iowa 538; Grimes v. Martin, 10 Iowa 347; Tifield v. Adams, 3 Iowa 487. Kansas. Kansas Ins. Co. v. Berry, 8 Kan. 159. Kentucky. Clarke v. Baker, 7 J. J. Marsh. 197. Maryland. Garvey v. Wayson, 42 Md. 178; Baltimore & O. B. Co. v. Besley, 14 Md. 424; Maryland Ins. Co. v. Bathurst, 5 Gill & J. 159. Missouri. Dempsey v. Eeinsedler, 22 Mo. App. 43. South Carolina. Mitchell v. Charleston Light & Power Co., 45 S. C. 146. Texas. Missouri Pac. By. Co. v. Cullers, 81 Tex. 382; Bosenthal v. Middlebrook, 63 Tex. 333; Brownson v. Scanlan, 59 Tex. 222; Wells v. Barnett, 7 Tex. 584; Hardy v. De Leon, 5 Tex. 211; Pfeuffer v. Wil- derman, 1 White & W. Civ. Cas. Ct. App. § 1171; Galveston, H. & S. A. By. Co. v. Schrader, 1 White & W. Civ. Cas. Ct. App. §1147. Virginia. Bosenbaums v. Weeden, 18 Gratt. 785, 98 Am. Dec. 737; Kincheloe v. Tracewells, 11 Gratt. 587. West Virginia. Gas Co. v. Wheel- ing, 8 W. Va. 371; Henry v. Davis, 7 W. Va. 715. United States. Smith v. Carring- ton, 4 Cranch 62, 2 L. Ed. 550; Catts v. Phalen, 2 How. 381, 11 L. Ed. 308. It is not error to refuse an in- struction unless it ought to be given precisely in the terms prayed. Knapp v. State, 168 Ind. 153, 11 Ann. Cas. 604. 87— See ch. VI, §42, ante. 88 — Alabama. Hooper v. State, 106 Ala. 41; Bellinger v. State, 92 Ala. 86; Winslow v. State, 76 Ala.~ 42; Tuttle v. Walker, 69 Ala. 172; Green v. State, 66 Ala. 40, 41 Am. Eep. 744; South & N. A. B. Co. v. Seale, 59 Ala. 608; Mayberry v. Leech, 58 Ala. 339; Jacobson v. State, 55 Ala. 151; Myatts v. Bell, 41 Ala. 222. Colorado. Schmidt v. First Nat. Bank of Denver, 1# Colo. App. 261, 50 Pac. 733. Georgia. Seaboard Air-Line By. v. Maddox, 131 Ga. 799; Atlanta Machine Works v. Pope, 111 Ga. 872; Fields v. Carlton, 75 Ga. 556; Williams v. Gunnels, 66 Ga. 521; Sims v. James, 62 Ga. 260. Illinois. Mayville v. French, 246 111. 434; Harding v. Sandy, 43 111. App. 442. Indiana. Burgett v. Burgett, 43 Ind. 78; Indianapolis Traction & Terminal Co. v. Bowe, 43 Ind. App. 407; Leeper v. State, 12 Ind. App. 637. Kansas. Tays v. Carr, 37 Kan. 141, 14 Pac. 456. North Carolina. Biggs v. Gurga- nus, 152 N. C. 173; Nail v. Brown & Williamson, 150 N. C. 533; Marshall §176] Bequests for Instetjctions. 413 Also, requests for the modification of a charge should be reduced to writing. 89 , It has been held, however, that writing in ink is not essen- tial and that a statute requiring requests to be in writing is satisfied if the instructions are written with a lead pencil. 90 A rule of court that, ' ' before the argument of the case com- mences, the counsel on either side shall read and submit to the court in writing such propositions of law as they propose to rely on, which shall constitute the requests to charge," is designed mainly for the benefit of the trial judge, and there is no reason why he should not dispense with the rule requiring requests to be read; and the fact that a party is in court at the time instructions are given, and does not call v. Stine, 112 N. 0. 697; State v. Hor- ton, 100 N. C. 443, 6 Am. St. Eep. 613. North Dakota. Landis v. Fyles, 18 N. D. 587. Ohio. Cleveland, P. & E. E. Co. v. Nixon, 12 Ohio Cir. Dec. 79. Tennessee. Williams v. Miller, 2 Lea 405. Texas. Griffin v. Chadwick, 44 Tex. 406; Jones v. Thurmond 's Heirs, 5 Tex. 318; Sparks v. State, 23 Tex. App. 447; Hobbs v. State, 7 Tex. App. 117; Mills v. Haas (Tex. Civ. App.), 27 S. W. 263; Osborne v. State (Tex. Cr. App.), 56 S. W. 53; Waeohter v. State, 34 Tex. Cr. App. 297. Virginia. Virginia Cedar Works v. Dalea, 109 Va. 333. Washington. Northern Pae. B. Co. v. Myers-Parr Mill Co., 54 Wash. 447, 103 Pac. 453. The refusal to grant an oral re- quest to instruct that the jury shall disregard a remark of opposing coun- sel is not error. Harding v. Sandy, 43 111. App. 442- 89 — "The failure of the judge to comply with the oral request to modify the written charge was not error. When the court requested counsel to reduce the modification to writing, so that it could be under- stood, counsel should have complied with the request. The court is not bound to give in charge a request not made in writing, and clearly is not bound to give in charge oral modifications of a written request, especially where he has asked coun- sel to reduce the modification to writing, and counsel has failed to do so. A request of this kind is some- times calculated to confuse the judge, and , it would not always be safe to change or, modify t^he written charge upon such » request, as the judge might misunderstand counsel, or not fully comprehend the modi- fication desired." Savannah, T. & I. of H. Ey. v. Beasley, 94 Ga. 144. 90 — Harvey v. Tama County, 53 Iowa 228. 414 Instructions to Juries. [§ 176 the attention of the judge to his failure to charge upon re- quests, does not create an estoppel, nor preclude the judge from granting a new trial because of failure to charge on the requests. 91 § 177. Inspection by adverse party or counsel. It is usual to permit the counsel on opposing sides to in- spect instructions requested by their adversary, and a con- cealment with respect to such matters is a violation of the rights of litigants and contravenes the policy of public trials and the right of every party to be heard in court and throughout the trial of his cause. 92 § 178. Submission of several requests on same proposition. Where several instructions on the same proposition are submitted, the court may give that instruction which is least favorable to the party submitting the charges. 03 The failure to select the best instruction is not error, 04 and the court need not give that instruction which states the law in the most apt language. 05 § 179. Limitation on number. The trial court cannot arbitrarily fix the number of in- structions, 96 and a rule of the trial court limiting the num- ber of instructions on each side is unreasonable. 97 91 — Herskovitz v. Baird, 59 S. C. 95— Clifford v. Pioneer Fireproof- 307. ing Co., 232 111. 150, aff'g 135 111. 92 — Alabama Great Southern R. App. 417. See also, § 189, post. Co. v. Arnold, 80 Ala. 600; Lampe 96— Chicago City Ry. Co. v. v. United Rys. Co. of St. Louis, 177 O 'Donnell, 208 111. 267, rev 'g 108 Mo. App. 652. 111. App. 385; Daily v. Smith-Hip- 93— East St. Louis & S. R. Co. v. pen Co., Ill 111. App. 319; Chicago Zink, 229 111. 180, aff 'g 133 111. App. Union Traction Co. v. Ludlow, 108 127; National Enameling & Stamp- 111. App. 357. Contra, Chicago City ing Co. v. McCorkle, 219 111. 557, Ry. Co. v. Brady, 35 111. App. 460. aff'g 122 111. App. 344. 97— Chicago City Ry. Co. v. San- 94 — pioneer Fireproofing Co. v. dusky, 198 111. 400, aff'g 99 111. App. Clifford, 135 111. App. 417, aff'd 232 164. 111. 150. § 181] Requests for Instructions. 415 Also, the fact that more instructions are asked than is necessary does not ordinarily justify the refusal of neces- sary and proper instructions, 98 although there are cases in which the fact that an excessive number of instructions were requested has been held to justify the court in refusing all the charges." / § 180. Signing by party or counsel. In some jurisdictions, requests for instructions must be signed by the party requesting them, or his counsel, and re- quests not so signed may be properly refused. 1 , Where not required, the fact that instructions requested and given to the jury are signed by counsel is not error. 2 § 181. Disposition of requests. In passing upon requests to charge, the judge is not re- quired to give his reason for granting instructions 3 and he should refrain from remarks which might mislead the jury. 4 98— North Chicago St. Ry. Co. v. 475; Collett v. State, 156 Ind. 64; Polkey, 203 111. 225, rev'g 106 111. Craig v. Frazier, 127 Ind. 286; Glover App. 98. v. State, 109 Ind. 391; Childress v. 99 — Ninety-three instructions held Callender, 108 Ind. 394; State v. Sut- too many to ask court to consider. ton, 99 Ind. 300; Beatty v. Brum- La Salle County Carbon Coal Co. v. mett, 94 Ind. 76; Hunt v. Elliott, 80 Eastman, 99 111. App. 495. Ind. 245, 41 Am. St. Rep. 794; Citi- Where a party tenders eighty -four zens' St. Ry. Co. v. Hobbs, 15 Ind. instructions, the court is justified App. 610; Buehart v. Ell, 9 Ind. App. in refusing all. Chicago Athletic 353; Conduitt v. Ryan, 3 Ind. App. Ass'n v. Eddy Elec. Mfg. Co., 77 1; State v. Horton, 100 N. C. 443, 6 111. App. 204. See also, ch. IV, § 15, Am. St. Rep. 613; Houston v. 'ante. Blythe, 60 Tex. 506; Redus v. Bur- 1 — Mason v. Sieglitz, 22 Colo. 320, nett, 59 Tex. 576; Texas & P. Ry. 44 Pac. 588; Orman v. Mannix, 17 Co. v. Mitchell (Tex. Civ. App.), 26 Colo. 564, 17 L. R. A. 602n, 31 Am. 8. W. 154; Smith v. Fordyce (Tex.), St. Rep. 340, 30 Pac. 1037; School- 18 S. W. 663. field v. Houle, 13 Colo. 394; Schmidt 2 — Morisette v. Howard, 62 Kan. v. First Nat. Bank of Denver, 10 463, 63 Pac. 756. Colo. App. 261, 50 Pac. 733; Louis- 3— Strong v. Kadlec, 163 111. App. ville & S. I. Traction Co. v. Korbe, 298. — Ind. App. — , 90 N. E. 483; Su- "4— Biehler v. Coonce, 9 Mo. 347. preme Tent, Knights of Maccabees "The defendant asked the follow- of World, v. Ethridge, 43 Ind. App. ing charge: 'If the braces in ques- 416 Instructions to Juries. [§181 Where a requested instruction is handed the court, it will be sufficient for the court to read it to the jury, and say, "I give you that in charge;" B or that it is the law; 6 or to state approval of it, without using any formal mode of state- ment. 7 Indicating the authorship of given instructions, as by stating that these are the plaintiff's requested instructions is not error 8 although it may be better practice to give the tion [which proved defective] were fastened with twenty-penny nails or spikes, and the fastenings were reasonably sufficient to * * * guard against any accident there- from which was probable, and could have been reasonably foreseen, then you will find for the defendant. ' The instruction was refused, but it was written upon the same paper upon which was written another that was given. The trial judge, in handing the paper to the jury, cautioned them to disregard the refused instructions. Objection was made. It was held that, while the instruction was prop- erly refused, yet in going to the jury, its rejection emphasized by the remark of the judge, it may have had the effect of withdrawing from their consideration the testimony noted therein, and the act was reversible error." Trinity County Lumber Co. v. Denham, 85 Tex. 56. Where a statute provides that, when special instructions are re- quested, "the court shall either give or refuse these charges with or with- out modification, and certify thereto, and, when the court shall modify a charge, it shall be done in writing, and in such manner as to clearly show what the modification is," and a special instruction is requested that "an aggravated assault and battery may be committed by any indecent handling or fondling of the person of a female by an adult male, without her consent and against her will," it is improper to add the words "Submitted by the court, and the jury will please be governed thereby. ' ' Bradford v. ' State, 25 Tex. App. 723. , Where the court, on being handed requests, states that "counsel have handed me some requests as stating propositions of law by which you should be guided in determining your verdict," and proceeds to read the instructions to the jury, the court need not also state that he gives the requests in charge to the jury, or that such requests are correct. Noble v. Bessemer Steamship Co., 127 Mich. 103, 54 L. B. A. 456, 89 Am. St. Rep. 461. 5 — Peagan v. Cureton, 19 Ga. 404. 6— Long v. State, 12 Ga. 293. 7— State v. Stewart, 26 S. C. 125. When a judge said, "I told them that," as to a requested charge, the jury were bound to understand that he sanctioned and charged the re- quest. Caldwell v. Duncan, 87 S. C. 331. 8— Wilmarth v. Pacific Mut. Life Ins. Co. of California, 168 Cal. 536, Ann. Cas. 1915 B 1120n, 143 Pac. 780. Held not reversible error to state that the instructions were given at § 181] Bequests fob Instructions. 417 instructions without saying at whose request they are given. 9 An instruction need not be given as a requested instruc- tion, 10 nor in immediate response to the request, for it will be sufficient if, in the course of the instructions, it is given in charge to the jury. 11 In case a requested instruction is read by counsel to the court in the presence and hearing of the jury, the court need not repeat it, but may tell the jury that such is the law, and that it is given them as an instruction. 12 It is sumcient if the law is given in a charge so plainly that the jury have no difficulty in understanding it, whether it is repeated in their hearing by the judge himself, or read by another, and sanctioned by him as read. 13 If, however, it is provided by statute that the court shall read over to the jury all the instructions which it intends to give, and no others, it is reversible error to hand to the jury instructions announced as given, without first reading them to the jury. 14 It is not improper to submit a request for instructions to the defendant 's request. St. Louis given as that of the court and not as Southwestern B. Co. of Texas v. that of a party. Werlj, v. Illinois Cleland, 50 Tex. Civ. App. 499. Steel Co., 154 111. 427, aff'g 54 111. But see Terre Haute Traction & App. 302. Light Co. v. Payne, 45 Ind. App. 11 — Barkman v. State, 13 Ark. 132; Maxwell v. Town of Welling- 706; Long v. State, 12 Ga. 293. A ton, 138 Wis. 607. party cannot complain that correct 9 — See Doyle v. Portland Bail- instructions requested by his adver- way, Light & Power Co., 71 Ore. 576, sary are given in connection with 143 Pae. 623, 8 N. C. C. A. 146, .instructions requested by himself, where the writer of the opinion Robertson v. Parks, 76 Md. 118. states that it is abetter practice to 12 — Dillon v. McEae, 40 Ga. 107; give the instructions without in- East Tennessee, V. & G. E. Co. v. ' forming the jury, or saying in their Fain, 12 Lea (Tenn.) 35. Compare hearing, that certain parts are re- Leaptrot v. Bobertson, 44 Ga. 50. quested by the plaintiff and other 13 — Dillon v. McEae, 40 Ga. 107. portions by the defendant. 14 — Vsneman v. McCurtain, 33 10— Anderson v. City of Bath, 42 Neb. 643; McDuffie v. Bentley, 27 Me. 346. Neb. 380; State v. Missio, 105 Tenn. A requested instruction should be 218. Blashfield Vol. 1—27 418 Instructions to Juries. [§181 the opposing counsel for examination and discussion before action on it. 15 A refusal to give an instruction should be made in such a manner as not to mislead the jury as to the cause of the refusal. 16 The refusal of an instruction is not equivalent to the as- sertion of the converse of the proposition contained in it. lr An arbitrary refusal to examine requested instructions is error 18 and it has been held to be error not to answer directly a point proposed by counsel. 19 The court should either affirm or deny a well-constructed 15 — East Tennessee, V. & G. R. Co. v. Gurley, 12 Lea (Tenn.) 46. See also, § 177, ante. 16 — State v. McCairtey, 17 Minn. 76 (Gil. 54). If the judge refuses to comply with a request to charge, on the ground that he has already so charged, he should refuse the request upon that ground, lest the jury should be misled by an unqualified refusal. Welling v. Judge, 40 Barb. (N. Y.) 193. 17 — Dempsey v. Reinsedler, 22 Mo. App. 43; Miles v. Davis, 19 Mo. 408. 18— Crane Co. v. Hogan, 228 111. 338, rev'g 131 111. App. 314. 19— Keitt v. Spencer, 19 Fla. 748; Sommer v. Gilmore, 160 Pa. St. 129; Tenbrooke v. Jahke, 77 Pa. St. 392; Hood v. Hood, 2 Grant, Cas. (Pa.) 229; Geiger v. Welsh, 1 Rawle (Pa.) 349; Selin v. Snyder, 11 Serg. & R. (Pa.) 319; Simpson v. Wray, 7 Serg. & R. (Pa.) 336; Fisher v. Larick, 3 Serg. & R. (Pa.) 319; Smith v. Thompson, 2 Serg. & R. (Pa.) 49; Powers v. McPerran, 2 Serg. & R. (Pa.) 44; Noble v. McOlihtock, 6 Watts & S. (Pa.) 58; Carpenter v. Mayer, 5 Watts (Pa.) 483; Slay- maker v. St. John, 5 Watts (Pa.) 27; Crumless v. Sturges, 6 Heisk. (Tenn.) 190. "The plaintiff's counsel submit- ted a series of points, ten in num- ber, to which the court made this response: 'So far as the points are in accordance with what we have said to you was the controlling question in the case, they are affirmed, and, so far as they are not in accordance with the opinion we expressed in the general charge, they are refused.' It was 'not necessary to answer specifically every point in this series, but it was necessary to tell the jury the legal rule con- trolling the questions suggested by the points. We repeat what was said by our Brother Paxson in Hud- dleaton v. Borough of West Belle- vue, 111 Pa. St. 122: 'This is a very unsatisfactory way of answering points. It renders the point of no possible value with the jury, and al- ways adds greatly to our labors.' When such answer leaves the jury without adequate instruction upon the questions presented by the points, it. must, if the questions pre- sented are fairly and legitimately raised, be ground for reversal." Duncan v. Sherman, 121 Pa. St. 530. § 181] Bequests fob Instructions. 419 point submitted, 20 although it is not necessary, to affirm or deny the points separately. 21 It is error to evade a direct answer by telling the jury to be directed by the evidence before them., This is no instruc- tion at all. 22 An alteration is equivalent to a refusal 23 and where the court is evenly divided in opinion as to a prayer, it is to be regarded as refused, 24 also, an accidental omission to give a requested instruction has the same effect as a refusal. 20 Instructions requested and refused need not be read to the jury, 26 nor need the court tell the jury "that it had re- ceived them, or that it charged or refused to charge them." 27 Where the court, instead of giving or refusing certain re- quested instructions, told the jury that they might "use them as far as the same are practicable in arriving at a ver- dict, ' ' it was error, because it left the jury to decide whether the requested instructions were correct or not. 28 It is bad practice, sufficient to endanger the verdict, for the trial judge to read instructions to the jury and not 'de- 20 — Awank v. Phillip's, 113 Pa. St. facts from all the evidence. Gross 482. A party is entitled to an an- v. Tyrone Min. & Mfg. Co., 121 Pa. swer which is intelligible to the St. 387; Kraft v. Smith, 117 Pa. St. jury. Mills v. Buchanan, .14 Pa. St. 183. 59- 23— Pensacola & A. E. Co. v. At- 21 — Com. v. Cleary, 135 Pa. St. kinson, 20 Pla. 450. A charge not 64, 26 Wkly. Notes Cas. 137. If the given substantially as requested is judge's charge contains a sufficient to be regarded as refused. McHugh answer to the points, it is enough, v. State, 42 Ohio St. 154. although they are not answered sep- 24 — Michael v. Schroeder, 4 Har. firately. Patterson v. Kountz, 63 & J. (Md.) 227; Smith v. Gilmor, Pa. St. 246. 4 Har. & J. (Md.) 177. 22 — Waynesboro Mut. Fire Ins. 25— State v. McNamara, 3 Nev. 70. Co. v. Creaton, 98 Pa. St. 451. Where 26— Stewart v. Mills, 18 Fla. 57. the court is asked to charge what 27 — Soper Lumber Co. v. Halsted would be the legal effect of certain & Harmount Co., 73 Conn. 547. findings of fact, the answer must be 28 — Duthie v. Town of Washburn, responsive, and it is error to merely 87 Wis. 231. state that the jury must find the 420 Instructions to Juries. [§ 181 termine until after they are read whether they should be given or not. 29 If. the. contents of requested instructions are read in the presence of the jury, or otherwise made known to them, and the court refuses such instructions on the ground that they have already been given in the general charge, or in the form of other special instructions, the ground of refusal should be plainly stated to the jury, for otherwise they might be misled into the belief that they were refused on the merits. 30 • * Where the jury are not made acquainted with the contents of a refused instruction, the rule stated does not apply. If the requests are not read in their presence, but are submitted in writing (as is the case in probably the greater number of jurisdictions) to the judge, who marks them "Refused" if he rejects them, the jury cannot be misled by the refusal of the request. 31 It has been said in one case that, even if the jury do not know the substance of instructions refused, it would be well to note on the instruction the ground of the refusal, and in support of this view it is said: "A defendant might appeal without making any bill of exceptions, and in that case the charge of the judge would form no part of the record, whereas the instructions refused by him would come before us for review; and if we found that an instruction mani- festly correct and applicable to the case had been refused, * * * we might be compelled to reverse the judgment for a reason that in fact did not exist. " 32 29 — Eevilla Fish Products Co. v. Hun (N. Y.) 433. See also, People v. American-Hawaiian S. S. Co., 77 Hobson, 17 Cal. 424, wherein it was Wash. 49, 137 Pac. 337. held that failure to state the reason* 30 — People v. Williams, 17 Cal. for refusal is not ground for reversal 148; People v. Ramirez, 13 Cal. 172; unless the refused request was en- People v. Hurley, 8 Cal. 390; State tirely free from objection, v. Ferguson, 9 Nev. 106; State 31 — People v. Saunders, 25 Mich, v. Anderson, 4 Nev. 265; People v. 119. See also, State v. O'Connor, Bonds, 1 Nev. 33; Davis v. Richmond 11 Nev. 416. & D. R. Co., 30 S. C. 613. 32— State v. O'Connor, 11 Nev. Contra, Hopcraft v. Lachman, 68 427. § 182] Bequests for Instructions. 421 §182. Marking instructions "Given" or "Refused." A statutory provision requiring instructions to be marked "Given," "Refused" or "Modified" is intended simply to preserve a proper record, and it is not material that the court point out to the jury just what language is requested and what modifications are made by the court. 33 The principal object of such a statute is to avoid disputes as to what instructions were given; and the statute will be satisfied by marking at the bottom of the last of the pages on which the instructions were written, ' ' The foregoing are all refused. " 34 Where the trial judge marks instructions "Refused except as covered in the general charge ' ' instead of ' ' Refused, ' ' the notation is a sufficient compliance with the statute 35 and the indorsement by the court, upon a requested instruction, that it ' ' did not consider and pass upon said proposition be- cause it did not include and was not based on the leading facts upon which the case was tried, ' ' amounts to a refusal, and is a sufficient compliance with the statute. 36 If an instruction is refused merely because the substance thereof has already been given, advantage cannot be taken, upon appeal, of the fact that the court simply marked ' ' Re- fused" on the instruction, without stating the ground of refusal. 37 Under a statute requiring the presiding judge to distinctly note a refusal and "subscribe his name thereto," a charge cannot be construed as refused when merely the word "Re- fused" written with a pen appears, and the court on appeal 33 — Farrell v. Citizen's Light & igan Judicature Act of 1915. Ch. R. Co., 137 Iowa 309. See also, An- XVIII, section 59, of that act pro- derson v. Foley Bros., 110 Minn. 151. vides that "any request not sub- 34 — Territory v. Baker, 4 N. M. stantially covered by the charge as (Gild.) 236, 13 Pac. 30; 4 N. M. given shall be deemed to be re- ( Johns.) 117, 13 Pac. 30. fused." 35— C. L., § 10245; Howell's Mich. 36— Moore v. Sweeney, 28 111. App. St. Ann., § 11839; People v. Smith, 547; appeal dismissed, 128 111. 204. 177 Mich. 358. This provision seems 37 — People v. Douglass, 100 Cal. to have been omitted from the Mich- 1, 34 Pac. 490. 422 Instructions to Juries. [§ 182 cannot take official notice that such word is in the hand- writing of the judge. 38 Where the court writes ' ' Held " on an instruction, in com- pliance with the statute, the addition of an explanation that the instruction was not warranted by the evidence does not nnibunt to a refusal. 39 The notation should not be misleading or unintelligible but, a notation on an instruction following the signature of plaintiff' s attorneys reading "Requested after the reading of the main charge and after the court 's refusal of plaintiff 's request to give a peremptory instruction in its favor^ and given," has been held not confusing or misleading. 40 Also, an instruction giving forms of a verdict of guilty and not guilty, both written on the same sheet of paper has been held not erroneous because the word "Given" appeared opposite the form for "Guilty." 41 Where the court marked a requested instruction, "Not given; given in instruction 37. N., Judge," and he also drew Ids pencil through several of the lines which were type- written, and drew a pen across them vertically several times, and diagonally twice, and subsequently drew 'his pencil through all that he had written except the words, ' ' Given. N., Judge," and added these words, "Pen and pencil marks not to be considered by the jury. N., Judge," and there is a photographic copy of the instruction in the record as handed to the jury, it cannot be contended that the marks upon the instruction rendered it unintelligible. 42 38 — Texas Rev. St., art. 1320. See also, Rockwell Bros. & Co. v. Missouri, K. & T. Ey. Co. of Texas Hudgens, 57 Tex. Civ. App. 504. v. Hurdle, — Tex. Civ. App. — , 39 — Flower v. Beveridge, 161 111. 142 8. W. 992. 53, affirming 58 111. App. 431. Special instructions whether given 40 — Allison v. .Arlington Heights or refused must be authenticated by Bealty Co., — Tex. Civ. App. — , 164 the signature of the tijial judge, and S. W. 1033. if the record fails to show that such 41 — People v. Donaldson, 255 111. instructions were refused they will 19, Ann. Cas. 1913 D 307. be presumed to have been given. 42 — People v. Shears, 133 Cal. 154, Porter v. State, 60 Tex. Cr. App. 588. 65 Pac. 295. § 183] Requests fob Instructions. 423 Where a requested instruction was modified by defining the limitations of the rules stated to prevent any misappre- hension by the jury of its proper force and application, and marked "Instruction 1 — given at the request of the defend- ant," it was not prejudicial error it appearing that the modified instruction presented a correct proposition of law. 43 Where there is a series of instructions, a refusal thereof, in a single sentence, instead of marking a refusal against the margin of each one singly, has been held sufficient. 44 So, where several instructions were asked, written on sheets of paper fastened at the top and on the margin of the first sheet, and the court wrote, "Instructions one to seven all refused, ' ' this was held a sufficient compliance with the statute. 45 The charge of the court, given of its own motion, need not be marked by the court. 46 § 183. Effect of noncompliance with statute. As a general rule, the provision of the statute that instruc- tions shall be marked "Given" or "Refused" is merely directory, and failure to so mark certain instructions will not work a reversal, where the record shows that they were 43 — Farrell v. Citizen's Light & requires the court to mark the word E. Co., 137 Iowa 309. "Given" on instructions given, and 44 — Lawrenceville Cement, Co. v. the word ' ' Refused ' ' on instructions Parker, 60 Hun (N. Y.) 586. refused, it has been held that "an Where the record shows that a instruction or a series of instruc- series of instructions requested were tions headed, 'Instructions given by actually refused, the mere failure to the court on its own motion,' and so mark each instruction ' ' Refused ' ' is placed in the record as to be clearly not reversible error. McDonald v. separate and distinguishable from Fairbanks, Morse & Co., 161 111. 131. the instructions presented by the 45 — Harvey v. Tama County, 53 parties, ' ' will suffice. The word Iowa 228. ' ' Given ' ' need not be marked on in- 46 — People v. Samsels, 66 Cal. 99, structions given by the court of its 4 Pac. 1061. own motion. Gillen v. Riley, 27 Neb. Under a statutory provision which 158. < 424 Instructions to Juries. [§ 183 actually given or refused, and consequently no harm can have resulted from failure to obey the statute. 47 It has been held in one case that if instructions are asked by the defendant, and the court, through inadvertence, neither marks them "Given" nor "Eefused," and they are not given to the jury, when such instructions announce cor- rect principles of law, and have not already been given in substance, the effect is precisely the same as if the instruc- tions had been formally marked ' ' Refused, ' ' and is a ground for reversal. 48 So it has been held in another case that, ''although the presiding judge does not write 'Given' or 'Eefused' upon the written charge, and does not sign his name thereto, yet, if the charge is set forth in the bill of exceptions, which shows that it was asked in writing, and that exception was reserved to the ruling of the court, error can be assigned in the appellate court on such ruling. ' ' 49 In many jurisdictions it is held however, that, unless in- structions are marked ' ' Given " or " Eefused, ' ' they will not be regarded as properly before the court on appeal, and no error can be assigned to the giving or refusal of such in- structions. 60 That the trial court gave or refused instructions is not proven by the indorsements "Given" and "Eefused" on 47 — Washington v. State, 106 Ala. from one of the parties, it is rever's- 58; McDonald v. Fairbanks, Morse ible error. Peart v. Chicago, M. & & Co., 161 111. 124; Tobin v. People, St. P. By. Co., 8 S. D. 431. See also, 101 111. 123; McKenzie v. Remington, Galloway v. McLean, 2 Dak. 372. 79 111. 388; Cook v. Hunt, 24 111.550; 48— Calef v. Thomas, 81 111. 486. Daxanbelklav v. People, 93 111. App. See also, Holcomb v. Norman, 43 553; Harrigan v. Turner, 65 111. Ind. App. 506. App. 470; Frame v. Murphy, 56 111. 49— Little v. State, 58 Ala. 265. App. 555; St. Louis, A. & T. H. E. 50— Jones v. Buzzard, 2 Ark. 415; Co. v. Hawkins, 39 111. App. 406; Muneie & P. Traction Co. v. Black, Where the court fails to mark a re- 173 Ind. 142; Cadwallader v. Blair, quest as either "Given" or "Re- 18 Iowa 421; Thompson v. Chumney, fused," but materially modifies, it, 8 Tex. 394. and gives it, as modified, as coming § 184] Bequests for Instructions. 425 papers sent up, it not appearing who made the indorsements, nor by allegations made in motion for new trial. 51 If the court refuses to make the proper indorsement and exception is taken, such refusal will constitute reversible error. 52 But where no exception is taken to the omission of the court to indorse such action upon the instructions, as the statute requires, it is presumed that the parties knew of the omission and consented thereto. 53 The act of indorsing by a written memorandum the action of the court in giving and refusing instructions is a judicial act. 54 All courts of record have the inherent power to make their records speak the truth, to correctly record what transpired in the court where through any omission or misprision of the clerk, this has not been done. But after judgment has been rendered in a cause and the term of court has closed, the power of the court ceases, and it cannot resurrect the cause disposed of for the purpose of performing any further judicial function therein. 55 § 184. Right to instructions requested. / Where instructions correct in form and substance, and applicable to the law and facts of the case are submitted in apt and proper time, it is the duty of the court to give such instructions, and a failure to do so is ordinarily reversible error 56 unless the court can say that the requested instruc- 51 — Jones v. Buzzard, 2 Ark. 415. son, 160 Ala. 306; Harvey v. State, See generally, ch. XXXIV, post, 125 Ala. 47. "Appellate Review of Instruc- Arkansas. A. G. Brown & Co. v. tions." McKnight, — Ark. — , 118 S. W. 52 — Holeomb v. Norman, 43 Ind. 409. App. 506. California. Sperry v. Spaulding, 53 — Holeomb v. Norman, 43 Ind. 45 Cal. 544; Emerson v. Santa Clara App. 506. Co., 40 Cal. 543; People v. Taylor, 36 54— Holeomb v. Norman, 43 Ind. Cal. 255. App. 506. Colorado. Kinkle v. People, 27 55 — Holeomb v. Norman, 43 Ind. Colo. 459, 62 Pac. 197. App. 506. Connecticut. Morris v. Piatt, 32 56 — Alabama. Boswell v. Thomp- Conn. 75. 426 Instructions to Juries. [§184 tioris were covered by other were given. Florida. Keitt v. Spencer, 19 Fla. 748; Baker v. State, 17 Fla. 406. Georgia. Central of Georgia By. Co. v. Bond, 111 Ga. 13; Haigler v. Adams, 5 Ga. App. 637. Illinois. KeoKuk & Hamilton . Bridge Co. v. Wetzel, 228 111. 253, aff'g 130 111. App. 81; Bennett v. Connelly, 103 111. 50; Bowman v. Wettig, 39 111. 416; Fisher v. Ste- vens, 16 HI. 397; State v. Wilson, 2 Scam 225; Levin v. Cazier, 146 111. App. 188; McCabe v. Swift & Co., 143 111. App. 404; Chicago Union Traction Co. v. Hansen, 125 111. App. 153; Suttle v. Finnegan, 86 111. App. 423; Stearns v. Beidy, 18 HI. App. 582; Chicago W. D. By. Co. v. Havi- land, 12 111. App. 561; Cohen v. Schick, 6 111. App. 280; Leuder v. People, 6 111. App. 98. Indiana. Parker v. State, 136 Ind. 284; Blacketer v. House, 67 Ind. 414; Carpenter v. State, 43 Ind. 371; Conaway v. Shelton, 3 Ind. 334; Case v. Weber, 2 Ind. 108; Taylor v. Hill- yer, 3 Blaekf. 433, 26 Am. Dec. 430; Jared v. Goodtitle, 1 Blaekf. 29; Fuelling v. Fuesse, 43 Ind. App. 441. Iowa. Spaulding v. Adams, 63 Iowa 437; Prichard v. Hopkins, 52 Iowa 120; Muldowney v. Illinois Cent. B. Co., 32 Iowa 176; State v. Gibbons, 10 Iowa 117. Kansas. Dickinson v. Beal, 10 Kan. App. 233, 62 Pac. 724. Kentucky. Owings v. Trotter, 1 Bibb 157; Beading v. Metcalf, Har- din 544; Bell v. North, 4 Litt. 133. Louisiana. State v. Tucker, 38 La. Ann. 789. Maine. Anderson v. City of Bath, 42 Me. 346; Lapish v. Wells, 6 Me. 175. Maryland. Wells v. Turner, 16 correct instructions, which Md. 133; Union Bank of Maryland v. Kerr, 7 Md. 88. Massachusetts. Coffin v. Coffin, 4 Mass. 25. Michigan. People v. Jacks, 76 Mich. 218; Cooper v. Mulder, 74 Mich. ,374; Babbitt v. Bumpus, 73 Mich. 331, 16 Am. St. Rep. 585; O'Callaghan v. Boeing, 72 Mich. 669; Hartford Fire Ins. Co. v. Baynolds, 36 Mich. 502. Mississippi. Nichols v. State, 46 Miss. 284. Missouri. Groshong v. United Bys. Co. of St. Louis, — Mo. App. — , 121 S. W. 1084; Pryor v. Metropoli- tan St. By. Co., 85 Mo. App. 367. Nebraska. Glassey v. Dye, 83 Neb. 615; First Nat. Bank of Madi- son v. Carson, 30 Neb. 104; Gil- bert v. Merriam & Boberson Sad- lery Co., 26 Neb. 194; Skinner v. Majors, 19 Neb. 453; Billings v. Mc- Coy, 5 Neb. 188. New York. Foster v. People, 50 N. T. 601; Brockman v. Metropoli- tan St. B. Co., 32 Misc. Bep. 728. North Carolina. State v. Gilmer, 97 N. C. 429; State v. Gaskins, 93 N. C. 547; State v. Christmas, 51 N. C. 471. Ohio. Jones v. State, 20 Ohio 46; Lewis v. State, 4 Ohio 389; Lytle v. Boyer, 33 Ohio St. 506; Cleveland, P. & E. B. Co. v. Nixon, 21 Ohio Cir. Ct. B. 736, 12 Ohio Cir. Dec. 79. Pennsylvania. Pennsylvania B. Co. v. Zebe, 33 Pa. St. 318; Belmont Church v. Devine, 28 Leg. Int. 85; Hughes v. Boyer, 9 Watts 556. Tennessee. McGavock v. Ward, Cooke 405; Baird v. Trimble's Les- see, Cooke 289; Lawrence v. Hudson, 12 Heisk. 671; Johnson v. McCamp- bell, 11 Heisk. 28; Souey v. State, §184] Requests foe Instructions. 427 Each party is entitled to instructions embodying his the- ory of the case. 57 13 Lea 472; Kendriek v. Cisco, 13 Lea 251;, Wilson v. Smith, 5 Yerg. 379; Williams v. Norwood, 2 Yerg. 329. Texas. Purnell v. Gandy, 46 Tex. 190; Norwood v. Boon, 21 Tex. 592; Coyle v. McNabb (Tex. App.), 18 S. W. 198; Cleburne E. & G. Co. v. McCoy, — Tex. Civ. App. — , 128 S. W. 457; Missouri, K. & T. R. Co. v. Graves, — Tex. Civ. App. — , 122 S. W. 458; Gann v. State, 42 Tex. Cr. App. 133. Vermont. Eastman v. Curtis, 67 Vt. 432; Brainard v. Burton, 5 Vt. 97; Washburn v. Tracy, 2 D. Chip. 128, 15 Am. Dec. 661. Virginia. Gordon v. City of Rich- mond, 83 Va. 436; Womack v. Circle, 29 Gratt. 208; Baltimore & O. R. Co. v. Polly, 14 Gratt. 447; Wells v. Washington's Adm'r, 6 Munf. 532j Brooke v. Young, 3 Band. 106; Picket v. Morris, 2 Wash. 255. Washington. Pantages v. Seattle Electric Co., 55 Wash. 453, 104 Pac. 629; McGee v. Wineholfr, 23 Wash. 748, 63 Pac. 571. West Virginia. Riley v. West Vir- ginia Cent. & P. Ry. Co., 27 W. Va. 147. Wisconsin. Sailer v. Barnousky, 60 Wis. 169; Campbell v. Campbell, 54 Wis. 90; Conners v. State, 47 Wis. 523; Tupper v. Huson, 46 Wis. 646; Wheeler v. Konst, 46 Wis. 398; Roberts v. McGrath, 38 Wis. 52; Rogers v. Brightman, 10 Wis. 55. United States. Thorwegan v. • King, 111 U. S. 549, 28 L. Ed. 514; Livingston v. Maryland Ins. Co., 7 Cranch 506, 3 L. Ed. 421; Douglass v. M'Allister, 3 Cranch 298, 2 L. Ed. 445; Mullen v. United States, 4 C. C. A. 22, 106 Fed. 892; Texas & P. R. Co. v. Rhodes, 30 U. S. App. 561, 18 C. C. A. 9, 71 Fed. 145. Instructions germane to the case and declaratory of the law should not be refused. Keokuk & H. Bridge Co. v. Wetzel, 228 111. 253, aff'g 130 111. App. 81; Levin v. Cazier, 146 111. App. 188; Chicago Union Traction Co. v. Hansen, 125 111. App. 153. The neglect or refusal of the judge to consider requests and give his ruling thereon to the jury in writing as required by statute is error. Keitt v. Spencer, 19 Fla. 748. A refusal to charge the jury upon "reasonable doubt" in a criminal case is reversible error. Parker v. State, 136 Ind. 284. It is often error to refuse a re- quest, because such refusal amounts to an affirmance of the converse of the proposition requested. Thus, "it is error to refuse to charge that the jury are not to draw any deduc- tions against either party from ob- jections made and evidence ex- cluded. ' ' Scott v. Third Ave. R. Co., 59 Hun 456, 13 N. Y. Supp. 344. "An instruction commenting on evidence is unnecessary." Pryor v. Metropolitan St. Ry. Co., 85 Mo. App. 367. 57 — Chicago Union Traction Co. v. Browdy, 206 111. 615, rev'g rt)8 HI. App. 177; Fessenden v. Doane, 188 111. 228, aff'g 89 111. App. 229; West Chicago St. R. Co. v. Foster, 175 111. 396, aff'g 74 111. App. 414. Defendants held entitled to an in- struction on their theory though the theory was denied by the plaintiff. Brzozowski v. National Box. Co., 104 111. App. 338. 428 Instbtjctions to Jubies. [§ 184 It is the privilege of a party to raise any question of law arising out of the facts, and to demand the opinion of the court distinctly upon it; and the opposite party has the equal privilege of asking an opinion upon additional facts, not embraced in the hypothesis of his adversary's prayer, but not of controlling or modifying that hypothesis. 58 What is admitted or conceded to be law by the plaintiff or defendant, as the case may be, is binding upon him, and, if it is accepted by the other side, it becomes the law of the particular case ; and it is error in the court to reject a prayer the correctness of which has been conceded. 59 The fact that in criminal cases the jury are the judges of both the law and the facts will not justify the court in refus- ing to instruct the jury on the law of the case, when properly requested. 60 The right to demand instructions, however, has a limit, and counsel will not be permitted to abuse the right. 61 It is not error to refuse to give an instruction which would conflict with other instructions given at the request of the same party, 62 and courts are not required to give instruc- tions which necessitate qualification or modification. If not good as requested, it is not error to refuse them. 63 58 — Parkhurst v. Northern Cent. tion from the court that these facts, E. Co., 19 Md. 472, 81 Am. Dec. 648; if believed by the jury to be estab- Birney v. New York & W. Printing lished, call V for the application of Telegraph Co., 18 Md. 341, 81 Am. the principle." Aldrige v. State, Dee. 607n; Whiteford v. Burekmyer, 59 Miss. 250. 1 Gill (Md.) 127. "Where all the 59--Sittig v. Birkenstack, 35 Md. facts and circumstances relating to 273 the subject are admitted, a party has 60 _ L euder v. People, 6 111. App. the right to ask the court to m- parkM y _ uf . ^ ^ struct the jury whether the evidence 61 _ FigWr y _ st lfl n] 3^ is sufficient to establish a waiver or ' not." Spring Garden Mut. Ins. Co. 62-Scott ▼• Texas & P. Ey. Co., v. Evans, 9 Md. 1, 66 Am. Dec. 308; ■ 93 Tex " 625 > ^versing (Tex. Civ. "After a party has obtained' a cor- A PP"), 56 S. W. 97; Texas & P. Ey. rect statement of the law governing c °- v - Hassell, 23 Tex. Civ. App. a point in the case, he has the right 681 - to an application* of the principle to 63 — American Ins. Co. v. Haynie, the facts in evidence, and a deelara- 91 Ark. 43; Fulsom-Morris Coal & §185] Requests fob Instbuctions. 429 Under some circumstances although it is. the duty of the court to comply with a proper request for instructions, a failure to do so may constitute merely a harmless error, which is not a sufficient ground for reversal. 64 Thus, where a verdict is properly directed, a refusal to charge as requested is not error. 66 § 185. Right to instructions as affected by state of evidence. Where there is no evidence in the case supporting or tend- ing to support the proposition involved in the request, it is not only proper to refuse the request, but it would be im- proper to give it, 66 and an instruction as to immaterial mat- ters is properly refused. 67 But it is error to refuse a request applicable to the evi- dence upon a material point, where the evidence upon that point is conflicting. 08 Mining Co. v. Mitchell, 37 C-kla. 575, 132 .Pac. 1103. 64 — Douglass v. M-'Allister, 3 Cranch (U. S.) 298, 2 L. Ed. 445. It is the 'duty of the court, when properly called upon, to declare the law applicable to the case. If, how- ever, the verdict is, notwithstanding an omission to instruct, for the same amount as must have been awarded if the required instruction had been given, the error may be disregarded. Douglass v. M'Allister, 3 Cranch (U. S.) 298, 2 L. Ed. 445. See also, Trial of Hodges, Hall's Law Tracts, 111. The refusal of a correct instruction is not ground for reversal if no harm resulted. Cole v. City of East St. Louis, 158 111. App. 494. 65 — Myers v. Kingston Coal Co., 126 Pa. St. 582, 24 Wkly. Notes Caa. 223; Lewis v. Simon, 72 Tex. 470. 66— Bacon v. Green, 36 Pla. 325; Pensacola & A. R. Co. v. Atkinson, 20 Pla. 450; Willis v. Bullitt, 22 Tex. 330. See ch. VIII, § 82, ante. The evi- dence relied on must be legally suffi- cient to warrant the conclusion sought to be deduced from it, or the request may be refused. Wells v. Turner, 16 Md. 133. "Where the payee of a note is dead, if the maker offers himself as a witness, and is excluded by reason of the death, there will be no need to instruct the jury why he cannot testify." Harris v. State, 142 Ga. 627; Corbitt v. Mooney, 84 Mo. App. 645. A requested charge as to estop- pel is properly refused where the evidence makes no question as to such issue. Adams v. Wm. Cameron & Co., Inc., — Tex. Civ. App. — , 161 S. W. 417. 67 — Cowie v. Kinser, 138 111. App. 143, aff'd 235 111. 383. 68— California. Hunt v. Elliott, 77 Cal. 588, 20 Pac. 132; Benton v. 430 Instructions to Juries. [§185 A party is entitled to instructions upon his theory if sup- ported by the evidence. 69 Where there is any evidence, however slight, to sustain a legal claim or a legal defense, the party introducing such evidence has a right to have it submitted to the jury by appropriate instructions; and when an instruction is sub- mitted, based upon evidence in the case, and stating cor- rectly a principle of law applicable to such evidence, and not covered by any instruction given, it is error to refuse the instruction, however meager the evidence to sustain the hypothesis contained in it. 70 Monnier, 77 Cal. 449, 19 Pac. 820; Sperry v. Spaulding, 45 Cal. 549. Illinois. Trask v. People, 104 111. 569; Wooters v. King, 54 111. 343. Michigan. Wisner v. Davenport, 5 Mich. 50l. Missouri. State v. Partlow, 90 Mo. 608, 59 Am. Eep. 31. Texas. Smith v. J. W. Wilson & Boatman Sav. Bank, 1 Tex. Civ. App. 115. 69 — Carlin v. Grand Trunk W. By. Co., 243 111. 64, 134 Am. St. Eep. 354, rev'g 150 111. App. 121; Chicago City By. Co. v. Gates, 135 111. App. 180; Chicago Union Traction Co. v. Han- sen, 125 111. App. 153. "The judge is not authorized to refuse requested charges because, while not denying the material facts stated, he disputes the correctness of the contentions of counsel based thereon. Counsel has the right to urge his own theory as to the infer- ences of motive and intention to be drawn from the facts, and to impress the same upon the jury; and though the judge may take a different view, the question is to be deter- mined by the jury, and, in case the jury should concur with counsel, de- fendant has the clear right to have them instructed as to the law appli- cable to the case. ' ' State v. Tucker, 38 La. Ann. 789. 70 — Alabama. Liner v. State, 124 Ala. 1. California. Davis v. Bussell, 52 Cal. 611, 28 Am. Bep. 647; People v. Taylor, 36 Cal. 255. Georgia. Cook v. Wood, 30 Ga. 891, 76 Am. Dee. 677. Illinois. Cook County v. Harms, 108 111. 153; Missouri Furnace Co. v. Abend, 107 111. 44, 47 Am. Bep. 425n; Eames v. Bend, 105 111. 506; Trask v. People, 104 111. 569; City of Chicago v. Scholten, 75 111. 468; Wooters v. King, 54 111. 343; Peoria M. & F. Ins.. Co. v. Anapow, 45 111. 86; Ed- wards v. Dettenmaier, 88 111. App. 366; Chicago Heights Land Ass'n v. Butler, 55 111. App. 461; Biedle v. Mulhausen, 20 111. App. 73. Indiana. Carpenter v. State, 43 Ind. 371; Conaway v. Shelton, 3 Ind. 334. Kentucky. Tribble v. Frame, 5 Litt. 189. Maine. Anderson v. City of Bath, 42 Me. 346. Michigan. Dikeman v. Arnold, 71 Mich. 656. 186] Requests for Instructions. 431 The party asking the instruction is entitled to the benefit of whatever inferences the jury may think proper to draw from the proof, however slight. 71 § 186. Requests embodied in instructions given. It is a well settled rule announced in almost an innumer- able number of cases, that it is not error to refuse to give requested instructions which are sufficiently covered by other instructions given in the case. 72 Mississippi. Levy, v. Gray, 56 Miss. 318. Nebraska. Hancock v. Stout, 28 Neb. 301. Nevada. State v. Levigne, 17 Nev. 435, 30 Pac. 1084. New York. Bvarts v. Burton, 17 N. Y. Wkly. Dig. 401. Tennessee. Lawrence v. Hudson, 12 Heisk. 671. Virginia. Hopkins v. Richardson, 9 Gratt. 485. When there is any evidence tending to prove a material fact in the case, the party in whose favor it is has the right, without regard to the amount of the evi- dence, to have the court instruct the jury as to the law arising upon the fact or facts which the evidence tends to prove, and leave to them to find whether or not the evidence is sufficient to establish the fact it was introduced to prove. New York, P. N. R. Co. v. Thomas, 92 Va. 606; Honesty v. Com., 81 Va. 283; Early v. Garland's Lessee, 13 Gratt. 1; Farish v. Reigle, 11 Gratt. 697, 62 Am. Dec. 666n; Hopkins v. Rich- ardson, 9 Gratt. 485. If there be any evidence of a fact, though the weight of evidence be against it, it is error to refuse to instruct the jury as to the legal ef- fect of that fact, if they believe it 'from the evidence. Levy v. Gray, 36 Miss. 318. "If the court be requested, in writing, to give a legal charge, and refuses upon the ground that there is no evidence to support it, when in fact there is evidence, it is error, and on account of which a new trial will be awarded, if the point was material in the case." Cook v. Wood, 30 Ga. 891, 76 Am. Dec. 677. 71 — Peoria M. & F. Ins. Co. v. Anapow, 45 111. 86; Wells v. Turner, 16 Md. 133; Sword v. Keith, 31 Mich. 247. 72 — Alabama. Corona Coal & Iron Co. v. Ferrier, — Ala. — , 65 So; 780; Birmingham Railway, Light & Power Co. v. Girod, 164 Ala. 10, 137 Am. St. Rep. 17; Birmingham Rail- way, Light & Power Co. v. Chastain, 158 Ala. 421; Liner v. State, 124 Ala. 1; Murphy v. State, 108 Ala. 10; Smith v. State, 92 Ala. 30 Henderson v. State, 11 Ala. App. 37 Hubbard v. State, 10 Ala. App. 47 Fowler v. State, 8 Ala. App. 168. In this state, the rule in the text applies only where the instruction given was at the request of the same party. Instructions given at the re- quest of the opposite party, or by the court of its own motion, furnish no ground for refusing a request, as 432 Instructions to -Juries. [§186 It is apparent that such a rule is necessary, since other- wise counsel could easily trip the court by multiplying re- quests for instructions concerning the same proposition in a party is entitled to have an in- struction given in the exact lan- guage of his request. Refusal of requested instruction covered by those given held error without injury. Kirk v. State, 10 Ala. App. 216. Arizona. Rain v. State, 15 Ariz. 125, 137 Pac. 550; Southern Pac. Co. v. Hogan, 13 Ariz. 34, 29 L. E. A. (N. S.) 813n. Arkansas. Western U. Tel. Co. v. Wilson, — Ark. — , 170 S. W. 993; School Dist. No. 30 v. Roth, — Ark. — , 170 S. W. 561; Whitley v. State, — Ark. — , 169 S. W. 952; Autrey v. State, — Ark. — , 168 S. W. 556; Turner v. State, 100 Ark. 199. California. People v. Raber, 168 Cal.. 316, 143 Pac. 317; People v. Wil- liams, 24 Cal. App. 646, 142 Pac. 124; People v. Guaragna, 23 Cal. App. 120, 137 Pac. 279; Boye v. An- drews, 10 Cal. App. 494, 102 Pac. 551. Colorado. Henwood v. People, 57 Colo. 544, 143 Pac. 373; Campbell v. People, 55 Colo. 302, 133 Pac. 1043; Mahler v. Beishline, 46 Colo. 603, 105 Pac. 874. Connecticut. Easton v. Connecti- cut Co., 88 Conn. 494. District of Columbia. United States v. McBride, 7 Mackey 371. Florida. Florida R. Co. v. Dorsey, 59 Fla: 260; Day v. State, 54 Fla. 25; Higginbotham v. State, 42 Pla. 573, 89 Am. St. Rep. 237; Coleman v. State, 26 Fla. 61. Georgia. Hall v. State, 141 6a. 7; Wilson v. Brock, 134 Ga. 782; Southern R. Co. v. Brock, 132 Ga. 858. Idaho. State v. Trego, 25 Idaho 625, 138 Pae. 1124; State v. O'Neil, 24 Idaho 582, 135 Pac. 60. Illinois. Jones v. Sanitary Dist. of Chicago, 265 111. 98; Kern v. Meyer, 264 111. 560; City of Kanka- kee v. Illinois Cent. R. Co., 263 111. 589; People v. Harrison, 261 111. 517; Huffman v. Graves, 245 111. 440; Blair v. Illinois Cent. R. Co., 243 111. 224, aff'g 149 111. App. 306; Smythe v. Charles P. Parish & Co., 237 111. 419, aff'g 140 111. App. 405; North American Restaurant & Oyster House v. McElligott, 227 111. 317, aff'g 129 111. App. 498; People ex rel. Stead v. Board Sup'rs Edgar Co., 223 111. 287; Illinois, I. & M. R. Co. v. Freeman, 210 111. 270; Rodgers v. Metropolitan Life Ins. Co., 180 111. App. 683; Gibbons v. Aurora, E. & C. R. Co., 177 111. App. 572; Sertiff v. Armour & Co., 173 111. App. 149; Ballah v. Peoria Life Ass 'n, 159 111. App. 222; City of Chicago v. Wie- land, 139 111. App. 197; Chicago City By. Co. v. Phillips, 138 111. App. 438; Chicago City Ry. Co. v. Don- nelly, 136 111. App. 204, aff 'd 235 111. 35; Barlow v. Farmers' Mut. Fire. Ins. Co., 128 111. App. 580. ' Indiana. Grand Rapids & I. R. Co. v. Oliver, 181 Ind. 145; Louisville & S. I. Traction Co. v. Lottich, — Ind. App. — , 106 N. E. 903; Pitts- burgh, O, C. & St. L. Ry. Co. v. Crockett, — Ind. — , 106 N. E. 875: C. F. Adams Co. v. Helman, — Ind. App. — , 106 N. E. 733; Bray v. Tardy, — Ind. — , 105 N. E. 772; Wright v. Fox, 56 Ind. App. 315; Walley v. Wiley, 56 Ind. App. 171. Iowa. Soderburg v. Chicago, St. §186] Requests foe Instructions. 433 various languages and thus speculate on the chance of secur- ing a favorable verdict, and at the same time be in a position to secure a reversal because of the refusal of certain charges P., M. & O. By. Co., — Iowa — , 149 N. W. 82; Correll v. Williams & Hunting, — Iowa — , 148 N. W. 633; Wood v. Sovereign Camp Woodmen of the World, — Iowa — , 147 N. W. 888; Korab v. Chicago, E. I. & P. Ey. Co., — Iowa — , 146 N. W. 765; Carnego v. Crescent Coal Co., 164 Iowa 552; Withey v. Fowler Co., 164 Iowa 377; Shuttlefield v. Neil, 163 Iowa 470; Dieckmann v. Chicago & N. W. E. Co., 163 Iowa 13; Kaus v. Gracey, 162 Iowa 671; Stokes v. Sac City, 162 Iowa 514; Phelps v. Chi- cago, E. I. & P. E. Co., 162 Iowa 123; Blades v. Des Moines City E. Co., 146 Iowa 580. Kansas. McClintick v. Pyle, 91 Kan. 393, 137 Pae. 788; State v. Chiles, 90 Kan. 787, 136 Pac. 225; Anderson v. Canter, 10 Kan. App. 167, 63 Pac. 285. Kentucky. Bonte v. Postel, 22 Ky. L. Eep. 583; Stafford v. Hussey, 17 Ky. L. Eep. 1194. Louisiana. State v. Garner, 135 La. 746; State v. Addison, 134 La. 642. Maine. Strickland v. Hanlin, 87 Me. 81. Maryland. Shoop v. Fidelity & Deposit Co. of Maryland, 124 Md. 130; New York, P. & N. E. Co. v. Peninsula Produce Exeh., 122 Md. 231. Massachusetts. Dewey v. Boston El. E. Co., 217- Mass. 599; Hadlock v. Brooks, 178 Mass. 425. Michigan. Conroy v. Haffner, — Mich. — , 148 N. W. 969; Showen v. J. L. Owens Co., — Mich. — , 148 N. W. 666; Karwiek v. Pickands, 181 Mich. 169; Sievers v. Barton, 180 Blashfield Vol. 1—28 Mich. 59; People v. Hammond, 177 Mich. 416. Minnesota. Watre v. Great North- ern E. Co., 127 Minn. 118; Pierson v. Modern Woodmen of America, 125 Minn. 150; State v. Mueller, 122 Minn. 91; Parsons Band Cutter & Self-Peeder Co. v. Haub, 83 Minn. 180. Mississippi. Matthews v. State, — Miss. — , 66 So. 325. Missouri. City of Springfield v. Owen, — Mo. — , 170 S. W. 1118 Holzemer v. Metropolitan St. E. Co. 261 Mo. 379; Sterling v. Parker Washington Co., 185 Mo. App. 192 Brickell v. Williams, 180 Mo. App 572; Cowgill v. City of St. Joseph 180 Mo. App. 327. Montana. State v. Mahoney, 24 Mont. 281, 61 Pac. 647; Territory v. Me Andrews, 3 Mont. 158; Territory v. Corbett, 3 Mont. 50. Nebraska. Bloom v. State, 95 Neb. 710; Warner v. City of Wayne, 95 Neb. 682. Nevada. Konig v. Nevada-Cali- fornia-Oregon Ey.,,36 Nev. 181, 135 Pac. 141; State v. Maher, 25 Nev. 465, 62 Pac. 236. New Hampshire. Smith v. Bank of New England, 70 N. H. 187; Whit- man v. Morey, 63 N. H. 448. New Jersey. Parks v. Delaware, L. & W. E. Co., 85 N. J. L. 577; Smith v. Irwin, 51 N. J. L. 507, 14 Am. St. Eep. 699. New Mexico. Territory v. Baker, 4 N. M. (Gild.) 236, 13 Pac. 30; Anderson v. Territory, 4 N. M. (Johns.) 108, 13 Pac. 21. New York. Lawson v. Metropoli- tan St. Ey. Co., 166 N. Y. 589, aff 'g 434 Instructions to Juries. [§186 if the verdict and judgment were unfavorable. A multipli- cation of instructions announcing in effect the same legal principle only tends to incumber the record and confuse the 40 App. Div. 307; Holbrook v. Utica & S. R. Co., 12 N. Y. 236, 64 Am. Dee. 502. North Carolina. South Atlantis Waste Co. v. Raleigh, C. & S. R. Co., 167 N. C. 340; State v. Rogers, 166 N. C. 388; Hodges v. Wilson, 165 N. C. 323; Steeley v. Dare Lumber Co., 165 N. C. 27. North Dakota. Kersten v. Great Northern R. Co., 28 N. D. 3; Wil- loughby v. Smith, 26 N. D. 209; State v. Miller, 20 N. D. 509; Landis v. Fyles, 18 N. D. 587. Ohio. American Steel Packing Co. v. Conkle, 86 Ohio St. 117; Bond v. State, 23 Ohio St. 349; Stewart v. State, 1 Ohio 66. Oklahoma. San Bois Coal Co. v. Resetz, 43 Okla. 384, 143 Pac. 46; St. Louis & S. F. R. Co. v. Model Laundry, 42 Okla. 501, 141 Pae. 970; Missouri, O. & G. R. Co. v. Vandivere, 42 Okla. 427, 141 Pac. 799; Farmers' Nat. Bank of We- woka v. McCoy, 42 Okla. 420, 141 Pac. 791; Alfred v. St. Louis, I. M. & S. E. Co., 42 Okla. 4, 140 Pac. 415; Coalgate Co. v. Hurst, 25 Okla. 588,- 107 Pae. 657. Oregon. Powder Valley State Bank v. Hudelson, — Ore. — , 144 Pac. 494; State v. Garrett, 71 Ore. 298, 141 Pac. 1123; Horn v. Davis, 70 Ore. 498, 142 Pac. 544; Stamper v. Raymond, 38 Ore. 16, 62 Pae. 20. Pennsylvania. Guarantee Trust & Safe Deposit Co. v. Waller, 240 Pa. 575. Rhode Island. Hampson v. Taylor, 15 E. I. 83. South Carolina. Lowrimore v. Palmer Mfg. Co., 60 S. C. 153; Mason v. Southern Ry. Co., 58 S. C. 70, 53 L. R. A. 913, 79 Am. St. Rep. 826, ■rh'g denied 58 S. C. 582; State v. Eobinson, 35 S. C. 340; Emory v. Hazard Powder Co., 22 S. C. 476. South Dakota. Hauff & Stormo v. South Dakota Cent. R. Co., 34 S. D. 183; State v. Cline, 27 S. D. 573; State v. Barnes, 26 S. D. 268. Tennessee. Stacker v. Louisville 6 N. R. Co., 106 Tenn. 450; Arkansas River Packet Co. v. Hobbs, 105 Tenn. 29; Guaranty Fund Life Soc. v. Ford, 104 Tenn. 533; Brown v. Odill, 104 Tenn. 250, 52 L. B. A. 660, 78 Am. St. Rep.' 914; Southern R. Co. v. Pugh, 97 Tenn. 624; Knights of Pythias v. Rosenfeld, 92 Tenn. 508. Texas. Irvin v. Johnson, — Tex. Civ. App. — , 170 S. W. 1059; Plant- ers' Oil Co. v. Keebler, — Tex. Civ. App. — , 170 S. W. 120. McSpadden v. Vannerson, — Tex. Civ. App. — , 169 S. W. 1079; Reece v. State, — Tex. Cr. App. — , 170 S. W. 317; Mill- ner v. State, — Tex. Cr. App. — , 169 S. W. 899; Brown v. State, — Tex. Cr. App. — , 169 S. W. 437; Fondren v. State, — Tex. Cr. App. — , 169 S. W. 411; Hill v. State, — Tex. Cr. App. — , 168 S. W. 864; Brown v. State, — Tex. Cr. App. — , 166 S. W. 508. Utah. Osborne v. Phenix Ins. Co., 23 Utah 428, 64 Pac. 1103; Konold v. Rio Grande W. Ry. Co., 21 Utah 379, 81 Am. St. Rep. 693, 60 Pac. 1021; People v. Chadwick, 7 Utah 134, 25 Pac. 737; Cunningham v. Union Pac. Ry. Co., 4 Utah 206, 7 Pac. 795. Vermont. Seeley v. Central Ver- mont R. Co., — Vt. — , 92 Atl. 28. §186] Requests foe Lnstbuctions. 435 jury 73 and the trial court should not be burdened with the duty of passing upon a large number of instructions. 74 It is ordinarily sufficient for the court, in its charge to the jury, to ' ' state once, fully and clearly, ' ' the propositions of law governing the case. 75 \ The court is not required to multiply instructions upon the same point, 76 and since the practice of requesting an unnecessarily large number of instructions is universally disapproved, 77 it is proper to refuse instructions which are but a reiteration in different language of those given, 78 even Virginia. Chesapeake & O. B. Co. v. Swartz, 115 Va. 723; Nesbit v. Webb, 115 Va. 362; Virginian E. Co. v. Jeffries' Adm'r, 110 Va. 471, Washington. Bagley v. Foley, 82 Wash. 222, 144 Pac. 25; Mickelson v. Fischer, 81 Wash. 423, 142 Pao. 1160; Woodard v. Cline Lumber Co., 81 Wash. 85, 142 Pae. 475; State v. Lewis, 80 Wash. 532, 141 Pac. 1025. West Virginia. Adkinson v. Balti- more & O. E. Co., — W. Va. — , 83 S. E. 291; State v. Cooper, — W. Va. — , 82 S. E. 358; Martin v. Eeiniger, — W. Va. — , 82 S. E. 221. Wisconsin. Czapinski v. Thomas Furnace Co., 158 Wis. 635; Behling v. Wisconsin Bridge & Iron Co., 158 Wis. 584. United States. Marchand v. Grif- fon, 140 U. S. 516, 35 L. Ed. 527; Indianapolis & St. L. E. E. v. Horst, 93 U. S. (3 Otto) 291, 23 L.Ed. 898; Denver & E. G. E. Co. v. Boiler, 41 C. C. A. 22, 100 Fed. 738. 73— Haney v. Caldwell, 43 Ark. 184; Continental Ins. Co. v. Horton, 28 Mich. 173; Baltimore & O. E. Co. v. Eesley, 14 Md. 424; Pettigrew v. Barnum, 11 Md. 434, 69 Am. Dec. 212n. It is an evil practice to repeat the substance of instructions over and over in different language, for it can only tend to confusion. Chicago & E. E. Co. v. Lain, 181 Ind. 386. 74— People v. Warfield, 261 111. 293. 75 — State v. Kearley, 26 Kan. 77. 76— St. Louis, I. M. & S. E. Co. v. Fuqua, — Ark. — , 169 S. W. 786; Fairchild v. Fleming, 125 Minn. 431. The court should not "multiply instructions, with changed phraseol- ogy, on a single proposition" of law. One clear, pointed statement to the jury of each proposition advanced is sufficient." Olive v. State, 11 Neb. 1. Instructions requested should not be repetitions of the same legal prop- osition. American Steel Packing Co. v. Conkle, 86 Ohio St. 117. 77 — Gracy v. Atlantic Coast Line E. Co., 53 Fla. 350. 78 — Eobinson v. State, — Ind. — , 106 N. E. 533; Gulf, C. & S. F. Ey. Co. v. Justin Mill & Elevator Co., — Tex. Civ. App. — , 168 S. W. 411; Harper v. State, — Tex. Cr. App. — , 170 S. W. 721. Where an instruction is given which presents an issue in such a manner that the ordinary juror will understand it, further instructions differently worded but covering the same point or making nice legal dis- tinctions are properly refused. John- 436 Instructions to Juries. [§ 186 though the charge refused is correct, 79 or more complete. 80 If a party requests two special charges presenting the same issue, and the court gives one of them, the party cannot be heard to complain that the other was not given, 81 and when a person offers several instructions on the same propo- sition he cannot complain that the one most favorable to him was refused. 82 A multiplication of instructions announcing the same legal principle is likely to result in giving undue prominence to issues, theories, and evidence, 83 which, as already seen, is improper and erroneous, 84 and it has been held that where an issue is fully covered by the general charge, to give a son v. Springfield Traction Co., 176 Mo. App. 174. An instruction already given may be refused though differing in form. Chicago City Ry. Co. v. Mager, 185 111. 336, aff'g 85 111. App. 524; Chi- cago & W. I. R. Co. v. Bingenheimer, 116 HI. 226. "There is no more merit in in- structional than in supplicatory or rhetorical repetitions." Jackson v. Kansas City, 181 Mo. App. 178. "No suitor, civil or criminal, can claim, as matter of right, that a charge once given at his request shall be repeated. It is better and safer, however, if the charge assert a correct legal principle, when viewed, in connection with the testi- mony, that it be given, unless it is an exact copy of one previously given in charge." Smith v. State, 92 Ala. 30. "It is well to keep in mind the rule declared in the case of Louis- ville & N. R. Co. v. Hurt, 101 Ala. 34, where it is held that the court com- mits no error in refusing charges re- quested by a party which are mere repetitions of charges already given at his request; and a mere variation in the use of words, which does not change the meaning in any respect, or application of the principles as- serted, does not affect the rule." Murphy v. State, 108 Ala. 10; Smith v. State, 92 Ala. 30. 79 — People v. Svendsen, 25 Cal. App. 1, 142 Pac. 861. 80 — Where a charge is given which fully covers the issues, it is proper to refuse a requested charge which is more complete. Chicago, R. I. & G. Ry. Co. v. Pemberton, — Tex. Civ. App. — , 170 S. W. 108. 81— Texas & N. O. R. Co. v. Ochil- tree, — Tex. Civ. App. — , 127 S. W. 584; Lyon v. Bedgood, 54 Tex. Civ. Apj>. 19. 82 — Devine v. Sproul, 177 111. App. 563. 83— Campbell v. Holland, 22 Neb. 587; City of Lincoln v. Holmes-, 20 Neb. 39; Hays v. Hays, 66 Tex. 606 Traylor v. Townsend, 61 Tex. 144 Newman v. Farquhar, 60 Tex. 640 Gray v. Burk, 19 Tex. 228; Powell v. Messer's Adm'r, 18 Tex. 40i. 84 — See ch. XIV, ante. § 186] Bequests foe Instructions. 437 special charge, directly pointing out specific acts, is upon the weight of evidence. 85 The duty of the court is fully discharged if the instruc- tions given embrace all the points of law arising in the case, 86 and its effort should be to render the instructions as free from complexity as possible. 87 \ The rule making it proper to refuse instructions reiterat- ing a rule of law already announced to the jury applies, though the language of the request differs from the language used in the instruction given, 88 and without regard to whether the requested instructions are covered by the gen- eral charge, 89 or by instructions given at the request of the 85— Sorrell v. State, — Tex. Cr. Co. v. Ives, 144 U. S. 408, 3.6 L. Ed. App. — , 169 S. W. 299. 485. 86 — Deitz v. Regnier, 27 Kan. 95. Refusal to give an instruction 87 — Deford v. State, 30 Mil. 179. in the language of the statute was 88 — Arkansas. State v. Reed, 68 not error, where it had been given in. Ark. 331; Stanton v. State, 13 Ark. substance, and one merely in the 317. language of the statute would have Florida. Richard v. State, 42 Fla. been of no assistance. State v. Reed, 528; Kenhard v. State, 42 Fla. 581. 68 Ark. 331. Illinois. Keeler v. Stuppe, 86 111. 89— Iowa. State v. Hamann, 113 309; Earll v. People, 73 111. 329; Iowa 367; Shannon v. Town of Tama Roth v. Smith, 41 111. 314. City, 74 Iowa 22. Indiana. Chicago & E. I. R. Co. Kansas. Missouri Pac. Ry. Co. v. v. Boggs, 101 Ind. 522, 51 Am. Rep. Johnson, 44 Kan. 660, 24 Pac. 1116; 761. State v. Start, 10 Kan. App. 583; 63 Iowa. Norris v. Kipp, 74 Iowa , p ac . 448; State v. Tulip, 9 Kan. App. 444. 454, 60 Pac. 659. Kansas. Lobenstein v. Pritchett, Louisiana^ State v. Fontenot, 48 8 Kan. 213. La Ann 2 83. ' Missouri. Marshall v. Bingle, 36 Minnesota.' Schultz v. Bower, 64 Mo. App. 125. Minn 123 _ Nebraska. Binfield v. State, 15 New york Hummel Nph 484 New York. People v. O 'Connell, * N " Y " 603 ' Ci ^ Trust ' Safe De P° sit 62 How Pr. 436. & Suret r Co - of Philadelphia *• *i- Ohio. Donald v. State, 21 Ohio delit y & Casualty Co. of New York, Cir. Ct. R. 124, 11 Ohio Cir. Dec. 483. 58 A PP- Div - 18 > 68 N - Y - Su PP- 601 5 Texas. Tucker v. Hamlin, 60 Tex. Mahon v. Metropolitan St. Ry. Co., 171; Powell v. Messer's Adm'r, 18 68 N. Y. Supp. 775. Tex. 401. North Carolina. Wilkie v. Raleigh United States. Grand Trunk Ry. & C. E. R. Co., 127 N. C. 203. 438 Instructions to Juries. [§186 opposite party, 90 or by the court of its own motion. 91 As a general rule the repetition of instructions will not work a reversal of the judgment unless the effect was to give undue prominence to some portion of the case, or to other- wise mislead the jury. 92 § 187. Same — Illustrations. In civil cases it is proper to refuse requested instructions as to the burden of proof, 93 or the weight or" effect of evi- North Dakota. State v. MeGahey, 3 N. D. 293. Oklahoma. Gatliff v. Territory, 2 Okla. 523, 37 Pac. 809. Oregon. State v. McDaniel, 39 Ore. 161, 65 Pac. 520; State v. Tucker, 36 Ore. 291, 51 L. R. A. 246, 61 Pac. 894. Pennsylvania. Watterson v. Fuell- hart, 169 Pa. St. 612, 36 Wkly. Notes Cas. 565. South Carolina. Long v. Hunter, 58 S. C. 152. Texas. Pless v. State, 23 Tex. App. 73; International & G. N. R. Co. v. Jackson, 25 Tex. Civ. App. 619; Bruce v. First Nat. Bank of Weatherford, 25 Tex. Civ. App. 295; Parlin & Orendorff Co. v. Coffey, 25 Tex. Civ. App. 218; Houston & T. C. R. Co. v. Byrd (Tex. Civ. App.), 61 S. W. 147; Houston & T. C. R. Co. v. George (Tex. Civ. App.), 60 S. W. 313; Sherman, S. & S. Ry. Co. v. Bell (Tex. Civ. App.), 58 S. W. 147; Texas & P. Ry. Co. v. Padgett (Tex. Civ. App.), 36 S. W. 300; Ramey v. State (Tex. Cr. App.), 61 S. W. 126; n. Gann v. State (Tex. Cr. App.), 59 S. W. 896; Dudley v. State (Tex. Cr. App.), 58 S. W. Ill; Stevens v. State (Tex. Cr. App.), 58 S. W. 96; Courtney v. State (Tex. Cr. App.), 57 S. W. 654; Neely v. State (Tex. Cr. App.), 56 S. W. 625; Padron v. State, 41 Tex. Cr. App. 548; Cannon v. State, 41 Tex. Cr. App. 467. United States. Coffin v. United States, 162 U. S. 664, 40 L. Ed. 1109. 90— Casey v. State, 37 Ark. 67; Lake Roland El. Ry. Co. v. McKew- en, 80 Md. 593. In Alabama the rule is different. See §189, post, "Duty to follow language of request." 91— People v. Bene, 130 Cal. 159, 62 Pac. 404. "It is competent for the court to reject all the prayers offered, and grant instructions to the jury in its own language; and, where these are correct, and cover the whole ground, the judgment will not be reversed, even though some of the rejected prayers might properly have been granted." McCarty v. Harris, 93 Md. 741. The refusal of a requested instruc- tion is harmless error where the court on its own motion gives an instruction covering the point in- volved. Kokomo Brass Works- v. Doran, — Ind. App. — , 105 N. E. 167. 92 — Lawder v. Hinderson, 36 Kan. 754, 14 Pac. 164; Ratto v. Bluestein, 84 Tex. 57; International & G. N. R. Co. v. Leak, 64 Tex. 654. 93 — Where the jury have been in- structed that the plaintiff has the burden of proving a certain proposi- §187] Requests pok Instructions. 439 dence and the credibility of witnesses, 94 when such matters are fully covered by the instructions given. Where the court instructs that the rights of the parties are to be- determined by the strict rules of law, a refusal to charge that plaintiff is not entitled to any sympathy from the jury is not error. 95 A requested charge submitting facts as a basis for a ver- dict the converse of those submitted in another instruction, is properly refused. 96 tion, the court may properly refuse to instruct that the burden of proof is not upon the defendant to prove the negative of such proposition. Richmond R. Co. v. Howard, 79 Ga. 44. Where the jury have been in- structed that a preponderance of evi- dence in plaintiff's favor is neces- sary to a recovery, it may refuse to instruct that the verdict should be for defendant if the evidence is evenly balanced. Blitt v. Heinrich, 33 Mo. App. 243. It is not error to refuse a charge that the claimant of property taken on execution must sustain his title by "abundant proof" where the court has already instructed that the burden of proof is on the claimant. Swinney v. Booth, 28 Tex. 113. 94 — An instruction that the jury, in weighing the evidence of a party who testifies in his own behalf, may consider his interest in the result, was properly refused, where the court had already instructed them that, 1 in weighing evidence, they had the right to consider whatever in- terest the witnesses might have in the result. Chicago City By. Co. v. Mager, 185 111. 336, aff' g 85 111. App. 524. The refusal of an instruction call- ing attention to the effect of im- peaching evidence upon the credibil- ity of any particular witness is not erroneous where a general instruc- tion on the question has been given. State v. Curran, 51 Iowa 112. Where the court has instructed the jury generally upon the effect of false testimony given knowingly and wilfully, it is not error to refuse. an instruction as to the effect of a contradiction between testimony given on different occasions on a, single point. Bernstein v. Smith, 10 Kan. 60. Where the court fairly informs the jury as to the weight of evidence necessary to impeach a release, the refusal to state the rule in the lan- guage of a proffered request is not error. Petterson v. Butler Bros., 123 Minn. 516. Where the jury have been told that certain evidence had nothing to do with the case, and was to be disregarded, it was not erroneous to refuse to repeat the rule on a mo- tion to strike out. Rollins v. O 'Far- rel, 77 Tex. 90. 95— Parker v. Otis, 130 Cal. 322, 92 Am. St. Rep. 56, 60 Pac. 571, 927. Where 1;he jury have been warned against deciding the case by sym- pathy, a special charge on the sub- ject may be refused. Hay v. Caro- lina Midland Ry. Co., 41 S. C. 542. 96 — Texas Cent. R. Co. v. Perry, — Tex. Civ. App. — , 147 S. W. 305. 440 Instructions to Jueies. [§187 A refusal to instruct that fraud is not presumed, and that, if the evidence is consistent with fair dealing, the jury should so find, is not error where an instruction is given that, where the evidence is as consistent with an honest pur- pose as a fraudulent one, the verdict should-be for the per- son charged therewith. 97 Where the court has instructed that the jury must receive the law of the case from the court, it is proper to refuse an instruction that a statement by counsel of a certain rule of law is not correct. The court cannot undertake to follow counsel through an extended argument, and confine him at all times to an absolutely accurate statement of the law. 98 Requests for three instructions defining testamentary ca^ pacity have been held unnecessary and misleading. One definition should be selected and adhered to. 99 In negligence cases, it is unnecessary to repeat instruc- tions as to contributory negligence, 1 or assumption of risk. 2 An instruction that the particular negligence alleged must be proved may be refused where another instruction states tbat there can be no recovery if the negligence alleged is not proved. 3 An instruction that a driver need not guard Connors v. Chingren, 111 Iowa 97 437. 98— International & G. N. R. Co. v. Crook (Tex. Civ. App.), 56 S. W. 1005. 99 — Heinbach v. Heinbach, — Mo. — , 170 S. W. 1143. 1 — Where the court has given a very clear instruction on contribu- tory negligence, it is proper to re- fuse an instruction concerning a particular circumstance from which contributory negligence may be in- ferred. Paducah Railway & Light Co. v. Ledsinger, 23 Ky. L. Rep. 441. 2 — Where, in an action by a serv- ant against a master to recover for injuries caused by defective machin- ery, the court has charged "that the plaintiff assumed all obvious risks, including those caused by the break- ing of belts, if she knew that they were frequently accustomed to break," it is proper to refuse an in- struction that, "if belts were con- stantly breaking in the room where plaintiff worked, and the plaintiff knew of that fact, and continued to work there, she assumed the risk of being injured by such breaking. If belts were constantly breaking, it would.be presumed that the plaintiff knew of the fact, and hence assumed the risk, and she cannot recover of the defendant corporation." McGar v. National & Providence Worsted Mills, 22 R. I. 347, 47 Atl. 1092. 3 — Smith- v. East St. Louis Ry. Co., 169 111. App. 132. § 187] Bequests foe Instructions. 441 against extraordinary occurrences is properly refused where another instruction states that there can be no re- covery unless the driver was negligent or if the child who was injured ran under the horse. 4 In an action for injuries to a servant from an unguarded saw, it is not error to refuse a charge stating the require- ment of the statute as to guarding the saw, where other instructions state what the law requires. 5 Where the court in a general charge sufficiently defines the distinction between commercial and logging railroads and the rule of law applicable to the latter when carrying passengers, it does not err in refusing a special request on the subject. 6 Where, in an action against a telegraph company for failure to transmit a telegram, the principal question is as to the authority of the receiving agent to execute the alleged -contract for the transmission of the telegram, and the court has charged that the receiving agent must have had actual or apparent authority to bind defendant, it is not error to refuse to 'charge upon the issue as to whether the delivering agent had notice of the want of authority, as such issue is immaterial. 7 It is not error to refuse a special charge upon the right to recover nominal damages, where the instruction is fully covered in the main charge. 8 The rule stated in the preceding section may be further illustrated in criminal cases where the charges given as to reasonable doubt and the degrees of proof are sufficient," 4 — Garlin v. Deahl, 172 111. App. jury had a right to consider that in- 197. nocent men had been convicted, and 5 — Eobishaw y. Schiller Piano Co., the danger of convicting men, was 179 111. App. 163. not error where the rule as to the 6 — Campbell v. Duluth & N. B. E. degrees of proof required in crim- Co., Ill Minn. 410. inal cases and the doctrine of rea- 7 — Western U. Tel. Co. v. Carter, sonable doubt were fully stated and 24 Tex. Civ. App. 80. explained. People v. Findley, 132 8— Gorman v. Brazelton, — Tex. Cal. 301, 64 Pac. 472. Civ. App. — , 168 S. W. 434. Where, "in several of the instruc- 9 — A refusal to, charge that the tions, the attention of the jury is 442 Insteuotions to Jukies. [§187 where the court has fully instructed as to degrees of an offense, 10 or the law of principals, 11 as to what constitutes a deadly weapon, 12 or as to the particular kinds of insan- called to the fact that to convict defendant they must be satisfied of his guilt beyond a reasonable doubt, and the jury is fully instructed as to what in law is a reasonable doubt," error cannot be assigned "to the giving of certain instructions be- cause the jury are not told therein that, befor"e they can find the de- fendant guilty, they must be satis- fied of his guilt beyond a rea- sonable doubt. It is not practicable for a trial court to state all the law governing a case in each and every instruction given." State v. Tippet, 94 Iowa 646. In a prosecution for theft, where the jury have been instructed that "the evidence, on the whole, must produce in your minds, to a reason- able and moral certainty, that the accused, and none other, committed the offense, " it is proper to refuse an instruction, "if the jury believe from the evidence or have a reason- able doubt whether appellant or some one else took the money from the injured party, to acquit defend- ant." McNamara v. State (Tex. Cr. App.), 55 S. W. 823. 10 — Where the court has explicitly instructed the jury upon the subject of degrees of the offense charged against defendant, and defined the different degrees, "and expressly in- formed them that the defendant might be convicted of either, * * * it is not required, that the court shall repeat such instruction in every possible connection in which refer- ence could be made to the degrees of the offense. ' ' People v. Schmitt, 106 Cal. 48, 39 Pac. 204. Where, in a prosecution for lar- ceny, "full and clear definitions of the crime with which the appellant is charged are given, and the jury is properly instructed as to the dif- ference between a mere trespass and the crime of larceny," a modifica- tion of an instruction tendered by defendant "by striking therefrom the words, , ' Larceny is something more than mere trespass,' does not constitute reversible error." Cur- rier v. State, 157 Ind. 114. 11 — In a prosecution for an as- sault, the court was not required to give a charge that a "mere knowl- edge on the part of defendant that an assault would be committed did not render him a principal in the , offense, ' ' where the ' court ' ' suffi- ciently instructed the jury on the doctrine of principals, and required the jury to believe beyond a reason- able doubt that defendant acted as a principal in committing the as- sault on the prosecutor, before they could find him guilty, — having pre- viously defined to the jury the law of principals." Grammer v. State, 42 Tex. Cr. App. 518. 12 — Where "the court instructs the jury that, if they believe from the evidence that the defendant * * * stabbed and cut T. with a knife, with intent to kill said T., and that said knife was a deadly weapon, they should find defendant guilty,"" it is not necessary that every subse- quent instruction "should submit to the jury the question as to whether or not the knife was a dangerous or deadly weapon." State v. Weeden, 133 Mo. 70. §188] Bequests fob Instktjctions. 443 ity, 13 or the corroboration of the testimony of accomplices. 14 An instruction that a defendant is not on trial for Certain offenses is properly excluded when the information and the instructions given correctly inform the jury. 15 § 188. Same — Qualifications and exceptions to rule. A special charge should be given, and its refusal is error where the issues are not sufficiently submitted in the court's general charge. 16 Thus, if the court charges generally upon a given issue which is determinative of the case, it is the duty of the court to give a requested charge pertinently applying the law to the facts in evidence relating to such issue, 17 and where the law governing the case is stated in an abstract 13 — Where the court has charged that if defendant "was insane, and did not know the nature and quality of his act, then he was not amenable to punishment," it is proper to re- fuse to charge "upon the species of insanity known as 'temporary men- tal aberration, as produced by ade- quate causes, and arising from sur- rounding circumstances; said state or condition of the mind being an excuse for crime committed. ' ' ' Castlin v. State (Tex. Cr. App.), 57 S. W. 827. 14 — Where the court has charged that if the jury believe, that certain witnesses are accomplices, they shall not find the defendant guilty upon their testimony unless they are satis- fied "that the same had been cor- roborated by other evidence tending to establish that the defendant did in fact commit the offense," it is proper to refuse to charge that "one accomplice cannot corroborate an- other, and that two or more accom- plices cannot corroborate each other, ' ' though, where more than one accomplice testifies, it is advisable for the court' to instruct that one accomplice cannot corroborate an- other. Stevens v. State (Tex. Cr. App.), 58 S. W. 96. 15 — People v. Loverkamp, 165 111. App. 532. 16 — Cariker & Wintz v. W. J. Vawters & Son, — Tex. Civ. App. — , 134 S. W. 780. See also, Western Coal & Mining Co. v. Moore, 96 Ark. 206; Fujise v. Los Angeles E. Co., 12 Cal. App. 207, 107 Pac. 317; Mc- Lean v. Sandusky Lumber & Box Co., 160 Mich. 324; Lyon v. Bed- good, 54 Tex. Civ. App. 19. 17— Pox v. Brady, 1 Tex. Civ. App. 590. "Where the testimony tenjs to show facts which, if found, consti- tute a complete defense, the defend- ant is entitled to have a special charge upon such issue, and a re- fusal to give such charge is reversi- ble error where the general charge fails to present clearly the law upon such issue." Western TJ. Tel. Co. v. Andrews, 78 Tex. 305. 444 Instkuctions to Juries. [§ 188 and general way, without applying it to the facts of the case, it is error to refuse an instruction stating correctly the law as applied to the specific facts involved. 18 Especially is a party entitled to a full and correct charge on the facts of the particular case, if requested, in close cases. 19 Where a proposition in the general charge or in other instructions is given in such a disconnected manner as to impair its force, it is error to refuse a proper instruction; 20 and the same rule has been held to apply where the charge given was apt to mislead the jury, and the fault was cor- rected by the required instruction, 21 where the requested charge was not fairly covered by the instructions given, 22 or where it was not given in terms as full, clear and favor- able as in the one requested. 23 v Ordinarily, it is better to give a requested instruction which is correct, as a refusal may cause an appeal which would otherwise not be resorted to. 24 § 189. Duty to follow language of request. It is a general well-settled rule of practice which obtains in the majority of states that a judge is not bound to give instructions in the identical words of a request, but may 18 — Metropolitan St. B. Co. v. nois Cent. E. Co., 41 Iowa 227; Willis Johnson, 90 Ga. 500; Thompson v. v. McNeill, 57 Tex. 465. Thompson, 77 Ga. 692; Parkhill v. 22 — MeCormick Harvesting Mach. Town of Brighton, 61 Iowa 103; Co. v. Volkert, 81 Minn. 434. See Muldowney v. Illinois Cent. E. Co., §§184, et seq., ante, "Necessity of 39 Iowa 615; Gerdine v. State, 64 giving requested instructions." Miss. 798; Lamar v. State, 64 Miss. 23 — Muldowney v. Illinois Cent. E. 428; Aldrige v. State, 59 Miss. 250. Co., 32 Iowa 180; State v. Maher, 19— Souey v. State, 13 Lea (Tenn.) 25 Nev. 465, 62 Pae. 236. But see 472. § 184, ante. 20 — Mynning v. Detroit, L. & N. 24 — People v. Murray, 41 Cal. 66; E. Co., 59 Mich. 257. People v. Strong, 30 Cal. 151; People 21— Manuel v. Chicago, E. I. & P. v. King, 27 Cal. 515; Banks v. State, E. Co., 56 Iowa 655; Haines v. Illi- 7 Tex. App. 591. §189] Bequests for Instructions, 445 do so in his own language, if the matter or principle em- braced therein is correctly and amply presented. 25 25 — 'Arkansas. Crisman v. McDon- ald, 28 Ark. 8; Sadler v. Sadler, 16 A*k. 628; Metcalf v. Little Rook St. Ry. Co., 13 S. W. 729. California. O'Rourke v. Venne- kohl, 104 Cal. 254, 37 Pae. 930; Peo- ple v. Dodge, 30 Cal. 451; People v. Kelly, 28 Cal. 425. Colorado. Martin v. Hazzard Powder Co., 2 Colo. 596; Jenkins v. Tynon, 1 Colo. App. 133, 27 Pac. 893. Connecticut. Tiesler v. Town of Norwich, 73 Conn. 199. Florida. Young v. State, 24 Fla. 147; Nickels v. Mooring, 16 Fla. 76. Georgia. Freeman v. Coleman, 88 Ga. 421; Robinson v. State, 82 Ga. 535; Durham v. State, 70 Ga. 264. Illinois. City of Chicago v. Moore, 139 111. 201, aff'g 40 111. App. 332; Chicago & A. R. Co. v. Pillsbury, 123 111. 9, 5 Am. St. Rep. 483; Hanchett v. Kimbark, 118 111. 121; Chicago & W. I. R. Co. v. Bingenheimer, 116 111. 226; Hill v. Parsons, 110 111. 107; Chicago, B. & Q. R. Co. v. Avery, 109 111. 314; Pennsylvania Co. v. Rudel, 100 111. 603; Village of Fairbury v. Rogers, 98 111. 554; Bromley v. Goodwin, 95 111. 118; Chi- cago, B. & Q. R. Co. v. Dickson, 88 111. 431; Hays v. Borders, 6 111. (1 Gilm.) 46; Bland v. People, 4 111. (3 Scam.) 364; Birmingham Fire Ins. Co. of Pittsburg v. Pulver, 27 111. App. 17. Indiana. Trogdon v. State, 133 Ind. 1; White v. Gregory, 126 Ind. 95. Iowa. National State Bank of Burlington v. Delahaye, 82 Iowa 34; Larsh v. City of Des Moines, 74 Iowa 512; Norris v. Kipp, 74 Iowa 444; Bixby v. Carskaddon, 70 Iowa 726; Galpin v. Wilson, 40 Iowa 90; Smith v. Sioux City & P. R. Co., 38 Iowa 173; State v. Stanley, 33 Iowa 526; State v. Gibbons, 10 Iowa 117; Ab- bott v. Striblen, 6 Iowa 191; Paukett v. Livermore, 5 Iowa 277. Kansas. Missouri Pac. Ry. Co. v. Cassity, 44 Kan. 207, 24 Pae. 88; Chicago, K. & W. R. Co. v. Brunson, 43 Kan. 371, 23 Pac. 495; State v. Tatlow, 34 Kan. 80, 8 Pac. 267. Kentucky. Jackson v. Com., 17 Ky. L. Rep. 1197. Louisiana. State v. Miller, 41 La. Ann. 677; State v. Durr, 39 La. Ann. 751. Maine. Inhabitants of Naples v. Inhabitants of Raymond, 72 Me. 213; Foye v. Southard, 64 Me. 389. Maryland. Kershner v. Kersh- ner's Lessee, 36 Md. 334; Smith v. Wood, 31 Md. 300; Higgins v. Carl- ton, 28 Md. 115, 92 Am. Dec. 666. Massachusetts. Tripp v. Taft, 219 Mass. 81; Com. v. Mullen, 150 Mass. 394. Michigan. Moore v. City of Kala- mazoo, 109 Mich. 176; People v. Weaver, 108 Mich. 649; Eldredge v. Sherman, 79 Mich. 484; Babbitt v. Bumpus, 73 Mich. 331, 16 Am. St. Rep. 585; Champlain v. Detroit Stamping Co., 68 Mich. 238; Brown v. McCord & Bradfield Furniture Co., 65 Mich. 360; Lewis v. Rice, 61 Mich. 97; Kendrick v. Towle, 60 Mich. 363, 1 Am. St. Rep. 526; Mynning v. De- troit, L. & N. R. Co., 59 Mich. 258; People v. Hare, 57 Mich. 506; Fraser v. Jennison, 42 Mich. 206; Campau v. Dubois, 39 Mich. 274; 446 Instructions to Jubies. [§189 This rule seems to follow as a necessary consequence of the rule already considered, that requests for instructions may be refused without error when substantially covered by other instructions given in the case. "While the court Ulrich v. People, 39 Mich. 245; Fowler v. Hoffman, 31 Mich. 215. Minnesota. Anderson v. Foley Bros., 110 Minn. 151; Smith v. St. Paul & D. B. Co., 51 Minn. 86; State v. Mims, 26 Minn. 183; Chandler v. De Graff, 25 Minn. 88; State v. Beebe, 17 Minn. 241 (Gil. 218); State v. MeCartey, 17 Minn. 76 (Gil. 54); Dodge v. Rogers, 9 Minn. 223 (Gil. 209). The object of the statute is to notify counsel of the propositions of law to be submitted. Anderson v. Foley Bros., 110 Minn. 151. Mississippi. Scott v. State, 56 Miss. 287; Masks v. State, 36 Miss. 77; Green v. State, 28 Miss. 688; Doe v. Peck, 4 How. 407; Boles v. State, 9 Smedes & M. 284. Missouri. Taylor v. Missouri Pac. E. Co., 16 S. W. 206; Muehlhausen v. St. Louis E. Co., 91 Mo. 332; State v. St. Louis Brokerage Co., 85 Mo. 411; State v. Jones, 61 Mo. 232; Harman v. Shotwell, 49 Mo. 423; State v. Ott, 49 Mo. 326; Mitch- ell v. City of Plattsburg, 33 Mo. App. 555; Smith v. Eno, 15 Mo. App. 576. Nebraska. Lau v. W. B. Grimes Dry-Goods Co., 38 Neb. 215. Nevada. State v. Davis, 14 Nev. 407. ■ New Hampshire. Walker v. Walker, 64 N. H. 55. New Jersey. , Miller v. Delaware Eiver Transp. Co., 85 N. J. L. 700; Fath v. Thompson, 58 N. J. L. 180. New York. Sherlock v. German American Ins. Co., 162 N. Y. 656; Sherman v. Wakeman, 11 Barb. 262. North Carolina. Marcom v. Dur- ham & S. E. Co., 165 N. C. 259; Car- ter v. Seaboard Air Line E. Co., 165 N. C. 244; State v. Crews, 128 N. C. 581; State v. Mills, 116 N. C. 992; State v. Thomas, 98 N. C. 599, 2 Am. St. Eep. 351; State v. Bowman, 80 N. C. 432; State v. Hargett, 65 N. C. 669; Hawkins v. House, 65 N. C. 614; State v. Dunlap, 65 N. C. 288. Ohio. MeHugh v. State, 42 Ohio St. 154; Bolen v. State, 26 Ohio St. 371; Bond v. State, 23 Ohio St. 349; Ashtabula Eapid Transit Co. v. Da- genbach, 11 Ohio Cir. Dec. 307; United States Home & Dower Ass'n v. Kirk, 9 Wkly. Law Bui. 48. Oklahoma. Veseley v. Engelke- meier, 10 Okla. 290, 61 Pac. 924. Oregon. State v. Garrett, -71 Ore. 298, 141 Pac. 1123; Astoria Southern E. Co. v. Pacific Surety Co., 68 Ore, 569, 137 Pac. 857; Scheurmann v Matheson, 67 Ore. 419, 136 Pac. 330 Pennsylvania. Hufnagle v. Dela ware & Hudson Co., 227 Pa. 476 19 Ann. Cas. 850; Duncan v. Sher man, 121 Pa. St. 520; Groft v. Weak land, 34 Pa. St. 304; Eidgway v Longaker, 18 Pa. St. 215. South Carolina. Broom v. Atlan- tic Coast Line E. Co., 96 S. C. 368; Thomas/m v. Victor Mfg. Co., 95 S. C. 239; State v. Wine, 58 S. C. 94; State v. Petsch, 43 S. C. 132; Hay v. Carolina Midland E. Co., 41 S. C. 542. Texas. Missouri Pac. Ey. Co. v. Williams, 75 Tex. 4; Shultz v. State, 13 Tex. 401. Utah. Scoville v. Salt Lake City, 11 Utah 60, 39 Pac. 481; People v. Chadwick, 7 Utah 134, 25 Pac. 737; §189] Bequests foe Instructions. 447 may give its own instructions in lieu of those asked, 26 the charges as given must cover all the points of the instruc- tions requested, 27 and the court in modifying the phrase- People v. Olsen, 4 Utah 413, 11 Pac. 577. Vermont. Reed v. Newcomb, 64 Vt. 49; State v. Eaton, 53 Vt. 574; Whittaker v. Perry, 38 Vt. 107; Campbell v. Day, 16 Vt. 558. Virginia. Richmond & D. R. Co. v. Norment, 84 Va. 167, 10 Am. St. Rep. 827. Washington. Harris v. Brown's Bay Logging Co., 57 Wash. 8, 106 Pac. 152; Rangenier v. Seattle Elec- tric Co., 52 Wash. 401, 100 Pac. 842; State v. Baldwin, 15 Wash. 15, 45 Pac. 650; City of Seattle v. Buzby, 2 Wash. T. 25, 3 Pac. 180. United States. Ayers v. Watson, 137 U. S. 584, 34 L. Ed. 803; Ohio, & M. By. Co. v. McCarthy, 96 U. S. (6 Otto) 258, 24 L. Ed. 693; Conti- nental Improvement Co. v. Stead, 95 U. S. (5 Otto) 161, 24 L. Ed. 403; Indianapolis & St. L. R. R. v. Horst, 93 U. S. (3 Otto) 291, 23 L. Ed. 898; Clymer's Lessee v. Dawkins, 3 How. 674, 11 L. Ed. 778; Kelly v. Jackson, 6 Pet. 622, 8 L. Ed. 523; Pitts v. Whitman, 2 Story 609, Fed.' Cas. No. 11196; Chicago & N. W. Ry. Co. v. Whitton, 13 Wall. 270, 20 L. Ed. 571; Laber v. Cooper, 7 Wall. 565, 19 L. Ed. 151; Southern Bell Telephone & Telegraph Co. v. Watts, 13 C. C. A. 586, 66 Fed. 466. 26— City of Chicago v. Moore, 139 111. 201, aff ' g 40 111. App. 332. "Where the court, in its general charge, covers a request except as to an item which is not disputed, the request is substantially covered." Crane Lumber Co. v. Otter Creek Lumber Co., 79 Mich. 307. "The prayer was that every link in the chain of circumstantial evi- dence must be as satisfactorily proved as the main fact of the mur- der, and the judge in reply said that, in a case in which the jury are asked to convict on circumstantial evi- dence, they must be fully satisfied of every link in the chain. It was held to be a substantial compliance with the prayer." State v. Bow- man, 80 N. C. 432. Where, in a prosecution for for- cible trespass, the court charges "that there must be a sufficient dis- play of force to intimidate, or such 1 as was calculated to produce a breach of the peace, and that they must judge from all the facts whether there had been a sufficient display of force to intimidate," it is proper to refuse to charge "that, before the jury can find the defendant guilty, they must first find that he entered with a strong hand, accompanied with a display of weapons or other force." The court is not required to give an instruction asked in the very language of the request. State v. Hinson, 83 N. C. 640. 27 — California. People v. Dodge, 30 Cal. 448. Illinois. City of Chicago v. Moore, 139 111. 201, aff'g 40 111. App. 332; People's Fire Ins. Co. v. Pulver, 127 111. 246; Alexander v. Mande- ville, 33 111. App. 589. Kansas. Missouri Pac. Ry. Co. v. Cassity, 44 Kan. 207, 24 Pac. 88. Louisiana. State v. Carr, 25 La. Ann. 407. Maine. State v. Reed, 62 Me. 129; State v. Barnes, 29 Me. 561. Michigan. Mynning v. Detroit, L. 448 Instructions to Jtjkies. [§189 ology cannot do so in such a manner as to alter the sense of the charge, 28 or change the language so as to render the instruction misleading, 29 or so as to obscure its vital point 30 or essentially weaken its force. 31 Counsel have a right to a clear formulation of every im- portant view of the law, either as they drew it up, or in some equally proper form, 32 and where an instruction as requested properly announces the law, it is better to give it as requested. 33 ' ' "When an instruction asked presents the law accurately, the court ought always to give it in the very words asked, especially in criminal cases, ' ' though failure to do so is not necessarily a ground for reversal. 34 For the court below to refuse to charge the jury, when requested, in writing, in the language of the judgment of a higher court, on the same statement of facts in a case be- & N. R. Co., 59 Mich. 258; Campau v. Dubois, 39 Mich. 274. Missouri. State v. St. Louis Bro- kerage Co., 85 Mo. 411; Coleman v. Koberts, 1 Mo. 97. North Carolina. McDonald v. Carson, 94 N. C. 507; Bencher v. Wynne, 86 N. C. 268; Newbern Com 'rs v. Dawson, 32 N. C. 436. Pennsylvania. Duncan v. Sher- man, 121 Pa. St. 520. Virginia. Baltimore & O. R. Co. v. Laffertys, 14 Gratt. 478.. Where instructions present the law of the case with reasonable accu- racy, it is immaterial that all points sought to be covered by instructions requested are not met. People's Fire Ins. Co. v. Pulver, 127 111. 246. 28 — Jamson v. Quivey, 5 Cal. 490; Russel v. Amador, 3 Cal. 400; Conrad v. Lindley, 2 Cal. 173; Chicago & W. I. R. Co. v. Bingenheimer, 116 111. 226; Chicago, B. & Q. R. Co. v. Dick- son, 88 111. 431; Kinney v. Laugh- enour, 89 N. C. 368; Brink v. Black, 77 N. C. 59; Rood v.' Dutcher, 23 S. D. 70, 20 Ann. Cas.-480. 29^Russel v. Amador, 3 Cal. 400; Baltimore & O. R. Co. v. Laffertys, 14 Gratt. (Va.) 478. 30— Parrish v. Bradley, 73 Mich. 610. 31— Young v. State, 24 Fla. 147; Horton v. Williams, 21 Minn. 187; Patterson v. Mclver, 90 N. C. 493; Brink v. Black, 77 N. C. 59; State v. Evans, 33 W. Va. 421. The judge cannot s6 alter the phraseology as to weaken the force of the instruction. Marcom v. Dur- ham & S. R. Co., 165 N. C. 259; Carter v. Seaboard Air Line R. Co., 165 N. C. 244. 32 — Campau v. Dubois, 39 Mich. 274. 33— Matthews v. State, — Miss. — , 66 So. 325. 34 — People v. Williams, 17 Cal. 142. § 189] Requests for Instructions. 449 tween the same parties, which, had previously been adjudi- cated in the latter court, has been held error. 35 But where the defendant requests a series of instructions, the court may separate them and give them in an order chosen by itself. It is certainly "not objectionable to group the instructions on particular subjects, and give them to the jury, so that they may have those upon the same subject, and which qualify each other, in juxtaposition, forming a more connected statement of the law than if separated." 3G A statute providing that all instructions ' ' shall be given or refused by the court without modification or change, unless modified or changed by consent of counsel," does not require all instructions to be given in the order re- quested. It is a matter of the court's discretion as to the arrangement and substance of the instructions, 37 and the purpose of such a statute is to prevent the giving of abridged or indefinite instructions in lieu of those re- quested. 38 In a few states the rule obtains, either by virtue of a statute or as an established rule of practice, that requested instructions must be given in the exact language of the request, 39 and where the requested charge is correct, its re- 35— Pugh v. MeCarty, 44 Ga. 384. 45 Ala. 89, 6 Am. Eep. 693; Edgar v. 36— Crowell v. People, 190 111. 508. State, 43 Ala. 45; Polly v. McCall, 37— Fawoett v. Ryder, 23 N. D. 37 Ala. 21; Bell's Adm'r v. Troy, 20, 3 N. C. C. A. 153. 35 Ala. 186; Phillips v. Beene, 16 38— Fawcett v. Ryder, 23 N. D. 20, Ala. 721; Cole v. Spann, 13 Ala. 537; 3 N. C. C. A. 153. Hinton v. Nelms, 13 Ala. 222; Clea- 39— Alabama. United States Life land v. Walker, 11 Ala. 1058, 46 Am. Ins. Co. v. Lesser, 126 Ala. 568; East Dec. 238; Ivey v. Phifer, 11 Ala. Tennessee, V. & G. R. Co. v. Bayliss, 535. 77 Ala. 429, 54 Am. Rep. 69; Cun- Dakota. Galloway v. McLean, 2 ningham v. State, 73 Ala. 53; Eiland Dak. 372. v. State, 52 Ala. 322; Hogg v. State, Florida. Pensacola & A. R. Co. v. 52 Ala. 2; Baker v. State, 49 Ala. Atkinsdn, 20 Fla. 450. 351; Sawyer v. Lorillard, 48 Ala. Indiana. Pate v. Wright, 30 Ind. 332; Bush v. Glover, 47 Ala. 167;- 476, 95 Am. Dec. 705. Warren v. State, 46 Ala. 549; Lyon v. Michigan. People v. Stewart, 75 Kent, 45 Ala. 656; Milner v. Wil- Mich. 21. son, 45 Ala. 478; Knight v. Clements, Ohio. Lutterbeck v. Toledo Con- Blashfield Vol. 1—29 450 Instructions to Juries. [§189 fusal is not cured by giving a charge of equivalent import. 40 When a special instruction in writing is asked for, the court must examine it, and, if correct, it must be given in whole in writing, or refused. It is error to hand it to the jury with an indorsement, "Accepted and given to the jury, except in so far as they conflict with the principles laid down in the charge. " It is reversible error to require the jury to compare diverse charges to find the law of the case. 41 A party has the right to a judgment on an instruction, as requested, and when modified it becomes the court 's instruc- tion. 42 An alteration of a requested instruction under this rule is equivalent to a refusal of the request 43 But the general rule that instructions must be given in the language of the request does not deprive the court of the right to give additional and explanatory charges, where necessary to sol. St. E. Co., 5 Ohio Cir. Dee. 141; Lake Shore & M. S. By. Co. v. Schultz, 19 Ohio Cir. Ct. E. 639; Murphy v. City of Cincinnati, 8 Ohio N. P. 244, 11 Ohio S. & C. P. Dec. 119. South Dakota. Peart v. Chieago,__ M. & St. P. Ry. Co., 8 S. D. 431; Green v. Hughitt School Tp., 5 S. D. 452. Texas. Dillingham v. Fields, 9 Tex. Civ. App. 4. Virginia. Baltimore & O. E. Co. v. Laffertys, 14 Gratt. 478. West Virginia. State v. Evans, 33 W. Va. 417. Wisconsin. Grace v. Dempsey, 75 Wis. 313; Mason v. Whitbeck Co., 35 Wis. 164; Eldred v. Oconto Co., 33 Wis. 134; Castello v. Landwehr, 28 Wis. 522; Andrea v. Thatcher, 24 Wis. 471; Eogers v. Brightman, 10 Wis. 55. 40 — East Tennessee, V. & G. E. Co. v. Bayliss, 77 Ala. 429, 54 Am. Eep. 69; Carson v. State, 50 Ala. 134; Williams v. State, 47 Ala. 659; Bush v. Glover, 47 Ala. 167; Knight v. Clements, 45 Ala. 89, 6 Am. Eep. 693; Edgar v. State, 43 Ala. 45; Polly v. McCall, 37 Ala. 20; Phillips v. Beene, 16 Ala. 720; Cole v. Spann, 13 Ala. 537; Hinton v. Nelms, 13 Ala. 222; Clealand v. Walker, 11 Ala. 1058, 46 Am. Dec. 238; Ivey v. Phifer, 11 Ala. 535; Maynard v. Johnson, 4 Ala. 116; Eives v. Mc- Losky, 5 Stew. & P. (Ala.) 330; Eogers v. Brightman, 10 Wis. 55. The earlier cases in Alabama estab- lishing this rule were overruled in Long v. Eodgers, 19 Ala. 321, and .Ewing v. Sanford, 21 Ala. 157, but the original rule was restored by statute. Eev. Code 1907, §5364. See Eiland v. State, 52 Ala. 322. 41 — Lang v. State, 16 Lea (Tenn.) 433. 42— Turner v. Butler, 253 Mo. 202. 43 — Pensaeola & A. E. Co. v. At- kinson, 20 Fla. 450. , §189] Bequests fob Instbuctions. 451 prevent a misunderstanding or misapplication of the charge by the jury; 44 although the court cannot, by such additional instructions, so limit, restrict and modify the requested in- struction as to limit or weaken its force. 45 In Alabama, charges moved for in writing must, under the statute, be given in the terms in which they are writ- ten, 46 but, if the request is oral, it is subject to qualification, and the court may charge in its own language. 47 On ap- ? peal, it will be presumed, in support of the judgment, that the charges were asked orally, unless the record shows affirmatively that they were requested in. writing. 48 In Texas, it is held that the judge should give or refuse a charge in the very terms of the request, and, if he wishes to give it in a qualified form, he should make the changes separately and distinctly from the charge as asked. 49 He 44— Blair v. State, 52 Ala. 343; Eiland v. State, 52 Ala. 322; Hogg v. State, 52 Ala. 2;. Bell's Adm'r v. Troy, 35 Ala. 184; Morris v. State, 25 Ala. 58; Eldred v. Oconto Co., 33 Wis. 134. Giving the requested in- struction "in connection with the general charge ' ' is not a violation of the statute. Baker v. State, 49 Ala. 350. A further charge requiring the jury to look to the evidence or all the evidence in determining a ques- tion covered by requested instruc- tions does not violate the statute. Blair v. State, 52 Ala. 343; Hogg v. State, 52 Ala. 2. 45— Eiland v. State, 52 Ala. 322. 46 — Barfield v. Evans, — Ala. — , 65 So. 928. As to earlier cases, see note 39, 'ante. 47 — Richardson v. State, 54 Ala. 158; Warren v. State, 46 Ala. 549; Lyon v. Kent, 45 Ala. 656; Milner v. Wilson, 45 Ala. 478; Broadbent v. Tuskaloosa Scientific & Art Ass'n, 45 Ala. 170. 48 — Milner v. Wilson, 45 Ala. 478. 49 — Missouri Pac. By. Co. v; Will iams, 75 Tex. 4, 16 Am. St. Eep. 867 Southern Cotton Press & Mfg. Co. v. Bradley, 52 Tex. 587; Grigsby v, ' Eeib, — Tex. Civ. App. — , 139 S. W, 1027; Trezevant v. Bains (Tex. Civ App.), 25 S. W. 1092. See also, King v. Eea, 13 Colo. 69, 21 Pac. 1084, Parker v. Georgia Pac. By. Co., 83 Ga. 539. "It is the right of the party asking a special charge to have the same kept distinct from any qualifications made by the judge pre- siding, so that it may clearly appear to the appellate court what the charge was as asked, and what modi- fications, if any, were made by the court below." Southern Cotton Press & Mfg. Co. v. Bradley, 52 Tex. 602. It is not strictly proper to qualify a requested charge. It should be given either as requested or refused. Missouri, K. & T. Ey. Co. of Texas v. Gillenwater, — Tex. Civ. App. — , 146 S. W. 589. 452 Insteuctions to Jukies. [§ 189 should not make changes by erasure and interlineations. 50 In some jurisdictions it is held that instructions should be given in the language of the request if found correct, and that a failure to do so is error unless the substance of the request is as well stated by the court in its own language. 51 But though the judge may limit himself to giving the in- structions submitted by counsel, it is entirely competent for * him to prepare his own charge, embodying the substance of all proper instructions asked by counsel, and such a practice will often result in furnishing to the jury a terse, consecu- tive and logical statement of the law applicable to the case, in place of the loose and fragmentary presentation of the law which is the natural consequence of giving instructions in the form in which they are requested by the respective counsel. In other jurisdictions it is said to be the better practice for the court to put aside the instructions asked by counsel, and to cover the whole ground of the controversy in a methodical and corrected charge of its own, stating the questions of fact to be decided, and the law applicable thereto under the issues and the evidence. 52 Failure to charge, in the exact language of the request may be, in many cases, mere harmless error, and not ground 50 — Southern Cotton Press & Man- 52 — Birmingham Fire Ins. Co. v. ufacturing Co. v. Bradley, 52 Tex. Pulver, 126 111. 329, 9 Am. St. Bep. 602. 598; City of Chicago v. Moore, 40 51 — People v. Williams, 17 Cal. 111. App. 334; State v. Collins, 20 142; Snively v. Fahnestock, 18 Md. Iowa 85; Key v. Dent, 6 Md. 142; 391; Fells Point Sav. Inst, of Balti- Bulkeley v. Keteltas, 4 Sandf. (N. more v. Weedon, 18 Md. 320, 81 Y.) 450. See also, Alexander v. Am. Dec. 603; People v. Stewart, Mandeville, 33 111. App. 589-; Fowler 75 Mich. 29; Babbitt v. Bumpus, 73 v. Hoffman, 31 Mich. 215. It is not Mich. 338; Cook v. Brown, 62 Mich. good practice for the court to charge 473, 4 Am. St. Eep. 870; Mynning the jury in chief, and then give all v. Detroit, L. & N. R. Co., 59 Mich. the instructions asked by either 257; Mask v. State, 36 Miss. 77. party. "A clear and distinct enunei- See also, Hall v. Hall, 6 Gill & J. ation of the law" should be given. (Md.) 386; Harman v. Shotwell, 49 Wilson Sew. Mach. Co. v. Bull, 52 Mo. 423. Iowa 554. 189] Requests foe Instkuctions. 453 for reversal, 53 as, where the instructions given are more favorable than those requested and refused. 64 In Alabama and Ohio, however, it is held that the statute is peremptory, and that the doctrine of error without injury cannot be ap- plied to a refusal to charge in the terms of the request. 65 53 — Illinois. State v. Wilson, 3 111. (2 Scam.) 225. Indiana. Lafayette, M. & B. E. Co; v. Murdock, 68 Ind. 137; Kramer v. Warth, 66 Ind. 548 ; Binns v. State, 66 Ind. 428; Jones v. State, 64 Ind. 473; Hadley v. Prather, 64 Ind. 137; Pate v. First Nat. Bank of Aurora, 63 Ind. 254; Brooks v. Allen, 62 Ind. 401; Crandall v. First Nat. Bank of Auburn, 61 Ind. 349; Beard v. Sloan, 38 Ind. 128; Nelson v. Hardy, 7 Ind. 364; Taber v. Hutson, 5 Ind. 322, 61 Am. Dee. 96; Law- renceburgh & U. M. E. Co. v. Mont- gomery, 7 Ind. 474; Abrams v. Smith, 8 Blaekf. 95; Gentry v. Bargis, 6 Blackf. 261. Iowa. Norris v. Kipp, 74 Iowa 444. Maryland. Hall v. Hall, 6 Gill & J. 386. Minnesota. Smith v. St. Paul & D. E. Co., 51 Minn. 86. South Dakota. Green v. Hughitt School Tp., 5 S. D. 452. Tennessee. Turner v. State, 4 Lea (Tenn.) 208. Texas. Missouri, K. & T. Ey. Co. of Texas v. Gillenwater, — Tex. Civ. App. — , 146 S. W. 589; Dillingham v. Fields, 9 Tex. Civ. App. 1; Treze- vant v. Eains (Tex. Civ. App.), 25 S. W. 1092. Wisconsin. Grace v. Dempsey, 75 Wis. 313; Mason v ; H. Whitbeek Co., 35 Wis. 164; Eldred v. Oconto Co., 33 Wis. 134; Andrea v. Thatcher, 24 Wis. 471; Bogers v. Brightman, 10 Wis. 55. United States. Schools v. Eisley, 10 Wall. 115, 19 L. Ed. 858. "Counsel have a right to require of the court to give an instruction as asked, when the same is in conform- ity with the law; and if, in the opin- ' ion of the court, the jury may not fully comprehend, or may be misled by, such instructions, unless ex- plained, it is then the province of the court to give such additional instruc- tions or explanations as may obviate the danger of misapprehension on the part of the jury. But where such course has not been pursued, and the instruction given has but slightly varied from the one asked, and if its legal import is substantially the same, the judgment of the court be- low will not, for that reason alone, be disturbed." State v. Wilson, 3 111. (2 Scam.) 225. A failure to charge a settled rule of law when requested is reversible error when the charge given in the new language of the court is doubt- ful. Turner v. State, 4 Lea (Tenn.) 208; Lawless v. State, 4 Lea (Tenn.) 173. 54 — Dillingham v. Fields, 9 Tex. Civ. App. 1; Watson v. Com., 87 Va. 608. 55— East Tennessee, V. & G. E. Co. v. Bayliss, 77 Ala. 429, 54 Am. Eep. 69; Eiland v. State, 52 Ala. 322; Carson v. State, 50 Ala. 134; Will- iams v. State, 47 Ala. 659; Bush v. Glover, 47 Ala. 167; Polly v. McCall, 37 Ala. 20; City of Cincinnati v. Lochner, 8 Ohio N. P. 436, 11 Ohio 454 Instructions to Juries. [§ 190 § 190. Modification of requested instructions. In the preceding sections the duty of the court to follow the language of a correct requested instruction has been' considered. 56 It has also been noted that the court may refuse to give a requested instruction which is incorrect, or which for any reason should not be given, but it is not bound to do so, and, if it sees fit, may modify the instruction so that it states the law correctly. 57 S. & C. PI. Dee. 119. Compare Saw- yer v. Lorillard, 48 Ala. 333. 56— See §§ 181-189, ante. 57 — Alabama. Eiland v. State, 52 Ala. 330. See also, Morris v. State, 25 Ala. 57. California. People v. Methever, 132 Cal. 326, 64 Pac. 481; People v. Dolan, 96 Cal. 315, 31 Pae. 107; Peo- ple v. Hall, 94 Cal. 595, 30 Pac. 7; People v. Cotta, 49 Cal. 166; People v. Davis, 47 Cal. 93; King v. Davis, 34 Cal. 100; People v. Williams, 32 Cal. 280; Boyee v. California Stage Co., 25 Cal. 460. Connecticut. State v. Duffy, 66 Conn. 551. Florida. Evans v. Givens, 22 Fla. 476. Georgia. Laeewell v. State, 95 Ga. 346; Doe d. Stephens v. Eoe, 37 Ga. 289. Illinois. Chenoweth v. Burr, 242 111. 312; Sanitary Dist. of Chicago v. City of Joliet, 189 111. 270; Village of Cullom v. Justice, 161 111. 372; City of Chicago v. Moore, 139 111. 201; Jansen v. Grimshaw, 125 111. 468; Chicago, B. & Q. E. Co. v. Per- kins, 125 111. 127; Kreigh v. Sher- man, 105 111. 49; Kimmel v. People, 92 111. 457; Meyer v. Mead, 83 111. 19; Trustees of Schools -v. McCor- mick, 41 111. 323; Hovey v. Thomp- son, 37 111. 538; Morgan v. Peet, 32 111. 281; Galena & C. U. B. Co. v. Jacobs, 20 111. 478; Bannister v. Eead, 6 111. (1 Gilm.) 92; Bland v. People, 4 111. (3 Scam.) 364; Kenny v. Marquette Cement Mfg. Co., 149 111. App. 173, aff'd 243 111. 396; Eckels v. Hawkinson, 138 111. App. 627; Wells v. Ipperson, 48 111. App. 580; Cary v. Norton, 35 111. App. 365; Terre Haute & I. E. Co. v. Voelker, 31 111. App. 324; Kadgin v. Miller,, 13 111. App. 474; Cohen v. Schick, 6 111. App. 280; Doggett v. Beam, 5 111. App. 174; Town of Earl- ville v. Carter, 2 111. App. 34. The court is not bound to modify erroneous instructions. Nelson v. Pehd, 203 111. 120, aff'g 104 111. App. 114. The court is not bound to mod- ify an inaccurate instruction, but may refuse it. Eolfe v. Eich, 149 111. 436, aff'g 46 111. App. 406. Indiana. Chicago, St. L. & P. E. Co. v. Spilker, 134 Ind. 380; Mus- grave v. State, 133 Ind. 297; Sherfey v. Evansville & T. H. E. Co., 121 Ind. 427; Smith v. State, 117 Ind. 167; Louisville, N. A. & C. Ey. Co. v. Hubbard, 116 Ind. 193; City of Logansport v. Dykeman, 116 Ind. 15; Over v. Schiffling, 102 Ind. 191; Board Com'rs Howard Co. v. Legg, 93 Ind. 523, 47 Am. Eep. 390; Bishop v. Welch, 54 Ind. 527; Lake Erie & W. E. Co. v. Arnold, 8 Ind. App. 297. §190] Bequests eok Instructions. 455 And it has been held that a modification may be made even after the court has indicated what instructions would be given and what refused. 58 See also, Taylor v. Wootan, 1 Ind. App. 188, 50 Am. St. Eep. 200. Iowa. Large v. Moore, 17 Iowa 258; Keenan v. Missouri State Mut. Ins. Co., 12 Iowa 126; State v. Gib- bons, 10 Iowa ,117; Abbott v. Strib- len, 6 Iowa 191; Paukett v. Liver- more, 5 Iowa 280; Tifield v. Adams, 3 Iowa 487. Kansas. Evans v. Lafeyth, 29 Kan. 736; Eeed v. Golden, 28 Kan. 632, 42 Am. Rep. 180; St. Joseph & D. C. B. Co. v. Chase, 11 Kan. 47. Kentucky. Pleak v. Chambers, 7 B. Mon. 569. 4 Michigan. Evans v. Montgomery, 95 Mich. 497; Weimer v. Bunbury, 30 Mich. 201; American Merchants' Union Exp. Co. v. Phillips, 29 Mich. 515. Minnesota. Bartleft v. Hawley, 38 Minn, i 308; Blackman v. Wheaton, 13 Minn. 326 (Gil. 299); Dodge v. Eogers, 9 Minn. 223 (Gil. 209). Mississippi. Brown v. State, 72 Miss. 990; Scott v. State, 56 Miss. 289; White v. State, 52 Miss. 216; Archer v. Sinclair, 49 Miss. 343; Wil- son v. Kohlheim, 46 Miss, 346; Doss v. Jones, 5 How. 158; Doe d. Vick v. Peck, 4 How. 407; Cicely v. State, 13 Smedes'fe M. 202; Boles v. State, 9 Smedes & M. 284. Missouri. State v. Ott, 49 Mo. 326; Kaw Brick Co. v. Hogsett, 82 Mo. App. 546. Nebraska. Tracey v. State, 46 Neb. 361. Nevada. State v. Davis, 14 Nev. 407; State v. Watkins, 11 Nev. 30; State v. Smith, 10 Nev. 123; Ger- hauser v. North British & M. Ins. Co., 7 Nev. 174.. New York. Knickerbocker v. Peo- ple, 57 Barb. 365; Stewart v. New York, O. & W. R. Co., 54 Hun 638. North Carolina. State v. Horton, 100 N. C. 443, 6 Am. St. Eep. 613; Overcash v. Kitchie, 89 N. C. 384. North Dakota. Landis v. Fyles, 18 N. D. 587. In this state the modi- fication must be consented to by counsel under N. D. Comp. 1913, § 7620. Ohio. Avery v. House, 2 Ohio Cir. Ct. R. 246. Pennsylvania. Yardley v. Cuth- bertson, 108 Pa. St. 395, 56 Am. Rep. 218; Killion v. Power, 51 Pa. St. 429, 91 Am. Dec. 127; Hays v. Paul, 51 Pa. St. 134, 88 Am. Dec. 569; Lloyd v. Carter, 17 Pa. St. 216; Amer v. Longstreth, 10 Pa. St. 145. South Carolina. Fletcher v. South Carolina & G. Extension R. Co., 57 S. C. 205. Texas. Brownson v. Scanlan, 59 Tex. 222. Utah. Gibson v. George G. Doyle & Co., 37 Utah 21, 106 Pac. 512; Clampitt v. Kerr, 1 Utah 246. Virginia. Rosenbaums v. Weeden, 18 Gratt. 785, 98 Am. Dec. 737. Washington. State v. Robinson, 12 Wash. 491, 41 Pac. 884. United States. Smith v. Carring- ton, 4 Cranch 62, 2 L. Ed. 550. 58 — "The court may modify in- structions asked, even after indicat- ing, according to the requirement of the statute, what instructions would be given and what refused." Louis- ville, N. A. & C. By. Co. v. Hubbard, 116 Ind. 193; City of Logansport v. Dykeman, 116 Ind. 15, 26. "It would be a travesty upon the admin- 456 Instructions to Jubies. [§ 190 In some cases it has been said to be the duty of the court, when not entirely satisfied with the instructions requested, to prepare other instructions which will properly submit the case to the jury. 59 And it has been held under a statute prohibiting the modification of requested instructions that the modification of an erroneous instruction asked, though in disregard of the statute, was not ground for reversal, unless the party asking the instruction was injured by the modification. 60 The modification made by the court must not be such as to render the instructions as given erroneous, misleading or otherwise objectionable, 61 and a correct instruction should not be modified unless the modification is supported by the evidence. 62 § 1-91. Particular modifications considered. A modification which does not change the sense and legal import of an instruction is not error. 63 The judge may istration of justice if a court was Eiland v. State/ 52 Ala. 330; Sawyer compelled to give an erroneous in- v. Lorillard, 48 Ala. 333; Dupree v. struction, simply because it had State, 33 Ala. 380,. 73 Am. Dec. 422; acted incautiously in indicating what Morris v. State, 25 Ala. 57; Dilling- instructions would be given." City ham v. Fields, 9 Tex. Civ. App. 1; of Logansport v. Dykeman, ante. Grace v. Dempsey, 75 Wis. 313; Ma- 59— Alabama. Bell's Adm'r v. son v. H. Whitbeck Co., 35 Wis. 164. Troy, 35 Ala. 185. 61— Orr v. Jason, 1 111. App. 446; Illinois. Kadgin v. Miller, 13 111. Stat.e v. Green, 20 Iowa 424. A PP- 474 - 62— Shelby v. Oflutt, 51 Miss. 128; Mississippi. Wilson v. Kohlheim, -w a i ker v . Stetson, 14 Ohio St. 89, 46 Miss. 346. 84 Am De(J 362 . Bain y _ wil 10 Missouri. State v. Jones, 61 Mo. gj. gt 14 232; Harman v. Shotwell, 49 Mo. 423 North Carolina. Phif er v. Alexan- 63— Reisch v. People, 229 111. 574, der, 97 N. C. 335. "If a defendant afl * 130 ™- A ™- 164 " A modlfi ° a - in his prayer for instructions sets up tl0n whleh does not chan S e the a broader right than he is entitled m e anln g «" n °* erroneous, to, the judge should not deny it al- California. People v. Davis, 47 together, but should explain to the ^" a1- "3. jury the true extent of his right.", Illinois. Chicago, R. I. & P. By. Amer v. Longstreth, 10 Pa. St. 145. Co. v. Kinnare, 190 111. 9; Richelieu 60 — Franke v. Riggs, 93 Ala. 252; Hotel Co. v. International Military §191] Requests for Instructions. 457 properly correct a clerical error, 64 and the mere addition of a legal principle, pertinent and proper to be considered with the facts of the case, is not error. 65 The court may add such observations as are necessary to show the proper application of the principle to the case in hand, 66 and the addition of a proper explanation is not error. 67 It is not error to make a modification which merely requires the jury to determine the issue from all the evi- dence in the case, 68 or which confines the jury to the evi- dence, or conforms the instructions to the pleadings, 69 or Encampment Co, 140 111. 248, 33 Am. St. Rep. 234. Iowa. Moore v. Chicago, B. & Q. By. Co., 65 Iowa 505, 54 Am. Rep. 26. Kansas. Reed v. Golden, 28 Kan. 632, 42 Am. Rep. 180. Missouri. John Deere Plow Co. v. Sullivan, 158 Mo. 440; State v. Fannon, 158 Mo. 149. Nevada. State v. Smith, 10 Nev. 123. See also, § 190, ante. South Carolina. State v. Powers, 59 S. C. 200. The court read the jury an in- struction, asked, and then, dislik- ing the last sentence, struck it out, told the jury he would read it -again, and did so without said sentence. It was held no error. Wells v. Ip- person, 48 111. App. 580. 64 — Kenny v. Marquette Cement Mfg. Co., 149 111. App. 173, aff 'd 243 111. 396. 65— People v. Davis, 47 Cal. 93; Meyer v. Mead, 83 111. 19; Reed v.' Golden, 28 Kan. 632, 42 Am. Rep. 180; Pleak- v. Chambers, T B. Mon. (Ky.) 569. 66— State v. Duffy, 66 Conn. 551; Green v. State, 28 Miss. 687; Lloyd v. Carter, 17 Pa. St. 216; Reed v. Neweomb, 64 Vt. 49. It is not error for the court, after answering a point affirmatively, to qualify it by stating that if the facts were differ- ent from those assumed, the' law would be otherwise. Lloyd v. Car- ter, 17 Pa. St. 216; Columbia Bridge Co. v. Kline, Brightly N. P. (Pa.) 320, 4 Clark 39. 67— State v. Duffy, 66 Conn. 551; Meserve v. Delaney, 105 111. 53; Needham v. People, 98 111. 275; Rein- back v. Crabtree, 77 111. 182; Over- cash v. Kitchie, 89 N. C. 384. The court may append explanation in writing to instruction requested. Knapp v. King, 6 Ore. 243. In an action against a master for injuries to a servant, on the request of counsel to charge that the question before the jury was not one of sci- ence, the judge said he was in doubt as to the meaning of the request, but, if it meant that the defendant was not bound to use the most sci- entific method, he so charged. He then gave counsel an opportunity for explanation. It was held no error. Stewart v. New York, O. & W. R. Co., 54 Hun (N. Y.) 638. 68 — Meserve v. Delaney, 105 111. 53; Kreigh v. Sherman, 105 111. 49. 69 — Florida. Evans v. Givens, 22 Fla. 476. Illinois. ' Chenoweth v. Burr, 242 111. 312; Kimmel v. People, 92 111. 458 Instructions to Juries. [§191 which adds a cautionary statement of an abstract principle of law. 70 It is proper to strike out mere repetitions' and reiterations, 71 or unnecessary and irrelevant matters, 72 and where an instruction as requested is ambiguous, obscure, involved or misleading, it is- proper for the court to modify it so as to make if intelligible, or to give additional instruc- tions properly presenting the case to the jury. 73 A modi- fication to make the instruction harmonize with other in- structions requested, by the same party is no.t .erroneous, 74 but a modification- of an instruction which causes it to con- tradict other instructions correctly stating the law is error. 75 Where abstract instructions' have been given tending to mis- 457; Terre Haute & I. R. Co. v. Voelker, 31 111. App. 314. ' Indiana. Smith v. State, 117 Ind. 167. Iowa. Large v. Moore, 17 Iowa 258. v Mississippi. Shelby v. Offutt, 51 Miss. 128. Missouri. O'Neil v. Capelle, 56 Mo. 296; Newby v. Chicago, R. T. & P. Ry. Co., 19 Mo. App. 391. Nevada. Burch v. Southern- Pac. Co., 32 Nev. 75, Ann. Cas. 1912 B 1166n, 104 Pac. 225. Pennsylvania. Hays v. Paul, 51 ' Pa., St. 134, 88 Am. Dee. 569; Killion v. Power, 51 Pa. St. 429, 91 Am. Dee. 127. 70 — Yardley v. Cuthbertson, 108 Pa. St. 395, 56 Am. Rep. 218. 71 — Gerhauser v. North British & U. Ins. Co., 7 Nev. 174. 72— People v. Cotta, 49 Cal. 166; Chicago City By. Co. v. M'cKeon, 143 HI. App, 598; Sherfeyv. Evans- ville & T. H. R. Co-., 121 Ind. 427. 73 — Alabama. Eiland v. State, 52 Ala. 330; Bell'.s Adm'r v. Troy, 35 Ala. 185. California. People v. Dolan, 96 Cal. 315, 31 Pac. 107. Illinois. Trustees of Schools .v. McCormick, 41 111. 323; Kadgin v. Miller, 13 111. App. 474; Cohen v. Schick, 6 111. App. 280. Kansas. Evans v. Lafeyth, 29 Kan. 736. Kentucky. Pleak v. Chambers, 7 B. Mon. 569. Michigan. American Merchants ' Union Exp. Co. v. Phillips, 29 Mich. 515. Nevada. State v. Davis, 14 Nev. 407; Gaudette v. Travis, 11 Nev. 149; State v. Watkins, 11 Nev. 30; State v. Smith, 10 Nev. 106. Oregon. Knapp v. King, 6 Ore. 243. Pennsylvania. Com. v. McMur- ray, 198 Pa. St. 51, 82 Am. St. Rep. 787. Virginia. Keen's Ex'r v. Monroe, 75 Va. 424; Womack v. Circle, 29 Gratt. 192. Wisconsin. Dodge v. O 'Dell's Es- tate, 106 Wis. 296. 74 — Feary v. Metropolitan St. Ry. Co., 162 Mo. 7 I 5. 75 — Chicago & A. R. Co. v. Hen- line, 120 111. App. 134. § 191] Requests foe Instructions. 459 lead the jury by diverting their attention 'from the issues •in the case, a modification which fits such instructions to the facts of the case is- not only proper, but it is error not to give the modification. 76 In a civil- action, a request to charge that the jury is "not authorized to find, except upon clear and convincing proof, ' ' etc., is properly changed by the court so as to read, "except upon a fair preponderance of proof," 77 and an instruction requiring the jury to reject the testimony of a witness who has "wilfully and knowingly" sworn falsely is properly modified by the addition of the word ' ' correctly. ' ' 78 In a prosecution for nuisance, an instruction that the jury must take into consideration the location of the plant, ' ' whether convenient or not, ' ' is properly modified by strik- ing out/ the phrase quoted. 79 An- instruction asked by one defendant may be modified to make it applicable to the other defendant, 80 and anjn- struction that brewery corporations are entitled to the same fair treatment as individuals may be modified by striking out the word ' ' brewery. " 81 "Where the defendant demands a special verdict, and then asks the court to give an instruction to the jury which can apply only to a general verdict,, the court may, without committing any error, so change the instruction as to make 76 — Trustees of "Schools v. Mc- to an instruction upon one point of Cormiek, 41 111. 323; Bannister v. the case words directing the jury as Read, 6 111. (1 Gilm.) 92; Blackman to other branches of the case." v. Wheaton, 13 Minn. 326 (Gil. 299) ; Cohen y. Schick, 6 111. App. 280. Gaudette v. Travis, 11 Nev. 149. 77 — Evans v. Montgomery, 95 "Parties have a right to require Mich. 497. the court to give an instruction as 78— Chicago City By. Co. v. Olis, asked, when it is in conformity with 192 111. 514, aff 'g 94 111, App. 323. the law, and if, in the opinion of 79 — People v. Archibald, 258 111. the court, the jury may be misled by 383. such instruction, unless explained, 80 — Cooper v. Kankakee Elec. it is the province of the court to Light Co., 164 111. App.. 581. give such further instructions as 81 — Star Brewery Co. v. Hauck, may obviate the danger of misap- 222 111. 348, 113 Am. St. Eep. 420, prehension; but it is error to add aff'g 126 111. App. 608. 460 Instructions to Jubies. [§ 191 it apply to a special verdict. Indeed, the court might in such a case refuse the instruction entirely. " 82 Where a party requested a charge that the measure of damages was the cash value of the property in question and the court struck out the word ' ' cash, ' ' it was held not error where the record did not show that any two standards of value were placed beforethe jury. 83 The court may refuse to give a charge that, in an action of slander, the plea of justification is no evidence that the words were spoken, though the general issue be also pleaded, and may charge in lieu thereof that such plea is evidence of malice, and may be considered by the jury by Way of aggravation of damages. 84 The following instruction was properly modified by the insertion of the words inclosed in brackets: "From the want of probable cause in the prosecution, the jury are not bound to [but they may J imply malice ; and if they are not satisfied, that the prosecution was instituted or carried on through malice [express or implied], they will find for the defendant. " 85 • On an issue whether defendants, as insurance brokers 1 , had agreed to keep plaintiff's property insured, a requested instruction that, "if defendants were the agents of plaintiff for the purpose of keeping plaintiff insured," certain con- sequences followed, was properly modified to read, "if de- fendant agreed with plaintiff to keep the plaintiff insured, ' ' since the instruction as requested left the jury to determine a question of law. 86 The insertion of the word "sole" before the. word "cause" is a proper modification- of an instruction on lia- bility for .negligence. 87 82 — St. Joseph & D. ,C. E. Co. v. 85 — Paukett v. Livermore, 5 Iowa Chase, 11 Kan. 47. 277. 83 — Weimer v. Bunbury, 30 Mich. 86— Kaw Brick Co. v. Hogsett & 200. Woodward, 82 Mo. App. 546. 84 — Doss v. Jones, 5 How. (Miss.) 87 — Lebow, v. Wiggins Ferry Co., 158. 147 111. App. 287, afl'd 241 111. 582. § 191] Bequests foe Instkuctions. 461 An instruction in an action for injury in an elevator, that the jury may disregard all testimony of' any witness whom they believe has testified falsely, is properly modified so as to limit it to false testimony on a material matter. 88 "An instruction which attempts to tell the jury that a plaintiff cannot recover for a present bodily condition not resulting from an injury received on a defective sidewalk may properly be modified so as not to deprive the jury of the right to give damages for other injuries not connected with such present condition. ' ' 89 Where, in an action for personal injuries, an instruction was asked that the failure of plaintiff to perform certain acts would constitute a bar to recovery, thereby telling the jury that such omission would constitute negligence, it was proper to substitute an instruction, "the law required of the plaintiff that she should exercise ordinary care for her safety." 90 In criminal cases, the court is not bound to address in- structions to each one of the jury, and! a request to charge that "each and every one of the jury" must be satisfied of defendant's guilt beyond a reasonable doubt is properly modified by striking out the qualifying words. 91 An instruction that the jury should receive the testimony of an accomplice with great caution, and might disbelieve it altogether, is properly qualified by adding, "if they have a reasonable doubt of its truth. ' ' 92 A requested instruction that every witness, including defendant, is presumed to speak the truth, and the jury are bound to remember such presumption, is properly modified by adding that such presumption is disputable, and the jury are the sole judges of credibility and of the weight of the 88 — Thompson v. Northern Hotel , 90 — City of Chicago v. Moore, 139 Co., 256 Ili. 77, aff'g 166 111. App. 111. 201, aff'g 40 111. App. 332. 618. 91— State v. Robinson, 12 Wash. 89 — Village of Cullom v. Justice, 491, 41 Pac. 884. 161 111. 372, aff'g 59 111. App. 304. 92— Brown v. State, 72 Miss. 990. 462 Instructions to Jueies. [§ 191 evidence, and that they may consider the interest, conduct and demeanor of a witness. 93 Where a defendant asked a special instruction, beginning : "If the jury believe the testimony of S. W.," etc., and the judge gave the instruction thus: "If the jury believe from the testimony of S. W.," etc., it was held that it was proper to insert the word ' ' from, ' ' because it is the province of the jury to interpret and determine what is proved by a wit- ness. 94 "On the trial of one for robbery, the court was asked on the part of the defendant to instruct the jury that ' conceal- ment of the robbery does not amount to participation in it, ' which the court modified by adding, 'but it is a circumstance to be weighed with all others in determining the question of participation.' Held, that there was no error in the modi- fication."? 5 In the following charge: "The jury are instructed that the following persons, among others, are not capable of committing crime under the laws of the state of California : Lunatics and insane persons, persons who commit the act charged without being conscious thereof, persons who com- mit the act charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence; and if the jury are satisfied beyond a reasonable doubt, by the evidence in this case, that the de- fendant, when he killed the deceased, was either a lunatic or an insane person [as 'insanity' is defined in these instruc- tions]," — it was proper to insert, after the words "insane person," the words "as insanity is defined in these instruc- tions." 96 § 192. Modification as harmless or reversible error. Where the modification of an instruction could not have misled the jury to the injury of the plaintiff in error, the 93— People v. Dolan, 96 Cal. 315, 95— Needham v. People, 98 111. 31 Pae. 107. 275. 94— State v. Horton, 100 N. C. 443, 96— People v. Methever, 132 Cal. 6 Am. St. Rep. 613. 326, 64 Pae. 481. §192] Requests fob Instructions. 463 judgment will not be reversed, 97 and a modification render- ing the instruction more favorable than the one asked is, at most, harmless error as respects the party making the request. 98 The striking of a clause cannot be complained of if its substance is given in another instruction. 99 It has also been held that a party cannot complain of a faulty modification of his own faulty instruction, 1 and that no modification of an erroneous instruction can be assigned as error by the party asking the instruction, because the court might have wholly refused .to give such instruction. 2 But it seems to be the better view that an instruction modified by the court is to be regarded as an instruction given by the court of its own motion, and, if it fails to properly state the law, it is 97 — Meserve v. Delaney, 105 111. 53; Reinback v. Crabtree, 77 111. 182; Howard Fire & Marine Ins. Co. v. Cornick, 24 111. 455; Bartlett v. Hawley, 38 Minn. 308; Alexander v. Richmond & D. R. Co., 112 N. C. 720. "A plaintiff aske"d a certain in- struction, authorizing a verdict for him in a certain state of facts. The court modified it by adding, 'unless the jury believe from the evidence the facts stated in the instructions for the defendant.' The instruc- tions referred to were correct. Held, that the sole effect of this modifica- tion was to call the attention of the jury, perhaps unnecessarily, to the defendant's instructions, but in it- self is not sufficient to cause a reversal of the case." Moyers v. Columbus Banking & Ins. Co., 64 Miss. 48. Striking out from a requested charge on credibility of witnesses the words, "from the appearance of the witnesses on the stand, ' ' is harm- less error, the charge, as left, stat- ing that the jury "have the right to determine * * * from their manner of testifying, their appar- ent candor and fairness, their lappar- ent intelligence or lack of intelli- gence, and all the other surrounding circumstances appearing on the trial, which witnesses are the more worthy of credit," etc. City of La Salle v. Kostka, 190 111. 130, aff'g 92 111. App. 91. 98— King v. Rea, 13 Colo. 69, 21 Pac. 1084; Watson v. Com., 87 Va. 608. See also, St. Paul's Episcopal Church v. Fields, 81 Conn. 670. 99 — McGuire v. North Breese Coal & Mining Co., 179 111. App. 592. A party cannot complain of the modification of an instruction where the sutfstance of the stricken part was contained in another instruction given. McGuire v. North Breese Coal & Mining Co., 179 111. App. 592. 1 — Wilkerson .v. Willis Coal & Mining Co., 158 111. App. 620; Wibel v. Illinois Cent. R. Co., 147 111. App. 187. 2 — Louisville, N. O. & T. Ry. Co. 464 Instructions to Jubies. [§192 erroneous, and open to objection from either party. 3 A proviso qualifying an instruction to the prejudice of the party asking it is reversible error. 4 § 193. Manner of making modification. In modifying an instruction by striking out part thereof, it has been held that the judge should completely obliterate such part so as not to give possible emphasis to the act of modification. 5 In some states the court is forbidden to modify instruc- tions by interlineation or erasure, 6 and in all states good v. Suddoth, 70 Miss; 265, wherein the court said: "It may be admitted that the instruction, as modified, im- posed upon the defendant too great a degree of care to avoid injury to the animal after its danger was discov- ered, and was therefore erroneous; but this will avail nothing unless the instruction, as aslted, was correct. If the defendant was not content with the instruction as modified, it should have declined to read it to the jury. No modification of an er- roneous instruction can be assigned for error by the party asking the in- struction, for the court might refuse such instruction outright. One who is entitled to nothing cannot com- plain that he gets something, but less than he asks. The instruction, as asked, was erroneous, because of its statement, in the disjunctive, that doing what could have been done to avoid the injury, after the danger was discovered, discharged the de- fendant from any precedent negli; gence." 3 — Morgan v. ( Peet, 32 111. 288; O'Niel v. Orr, 5 111. (4 Scam.) 1; Town of Earlville v. Carter, 2 111. App. 34. See State v. Gibbons, 10 Iowa 117; Abbott v. Striblen, 6 Iowa 191. 4 — Little Rock Traction & Elec- trie Co. v. Trainer, 68 Ark. 106; Wells v. Turner, 16 Md. 133. 5 — MeGuire v. North Breese Coal & Mining Co., 179 111. App. 592. 6 — Ham v. Wisconsin, I. & N. R. Co., 61 Iowa 720; Phillips v. Starr, 26 Iowa 349; Tracey v. State, 46 Neb. 370,' Daly v. Bernstein, 6 N. M. 380, 28 Pac. 764. "The statute points out the mode in which instructions may be modi- fied, and prohibits this from being done 'by interlineation or erasure.' Revision, section 3053 (Iowa Rev. 1907, § 3706). The first instruction asked by the plaintiff has indorsed on the margin, 'Given as modified;' with this memorandum by the clerk: 'The words underscored are added by the judge, and those with a pen- cil mark through them are erased by the judge. T. A. Bereman, Clerk.' We cannot act upon any such certificate. The clerk is not au- thorized to make it. How dangerous it would be to allow a clerk to cer- tify that the judge erased portions of instructions by drawing pencil marks through them. We are not disposed to be overnice in matters of practice. Every lawyer knows how important — how vital — a part of a 193] Requests for Instructions. 465 practice requires that it shall distinctly appear what the instruction asked and given is, and what the qualification is, so that exceptions may be properly saved for review ; 7 but a disregard of the prohibition is not ground for reversal unless an exception was saved, and it appears that the party complaining may have been prejudiced. 8 The fact that the erasure left the words stricken out still legible is im- material. 9 cause the instructions are. It is a wise provision of the statute which forbids interlineations and erasures in modifying instructions asked, and it should be followed; at least, if modifications are made in this way, the judge, and not the clerk, should certify in what they consist." Phil- lips v. Starr, 26 Iowa 352. 7 — California. King v. Davis, 34 Cal. 100. Georgia. Stephens v. Mattox, 37 Ga. 289. Indiana. Bishop v. Welch, 54 Ind. 527. Iowa. Ham v. Wisconsin, I. & N. By. Co., 61 Iowa 716. Kansas. Campbell v. Fuller, 25 Kan. 723. Missouri. Exchange Bank v. Cooper, 40 Mo. 169; Meyer v. Pacific E. Co., 40 Mo. 151. Modification of instructions asked may be made by cutting off a part of the sheet on which the instruc- tion is written, notwithstanding the, particular provisions of Code 1873, J 2785, as to the method of making modifications. Ham v. Wisconsin, I. & N. E. Co., 61 Iowa 716. Although the judge has the right to qualify propositions requested to be presented by him to the jury, when they are not strictly legal or pertinent, or when they require some addition or diminution to make them Blashfield Vol. 1—30 entirely correct, or are unauthorized by the facts in the case, yet, when the matters involved in the qualifi- cation made by the judge are entire- ly separable from the request made, and substantially disconnected from it, those matters of qualification should be presented, not in connec- tion with the instruction requested, but independently. Stephens v. Mattox, 37 Ga. 289. 8 — Campbell v. Puller, 25 Kan. 723; Tracey v. State, 46 Neb. 361; Daly v. Bernstein, 6 N. M. 380, 28 Pac. 764; Denver & R. G. By. Co. v. Harris, 3 N. M. (Gild.) 114, 2 Pac. 369; 3 N. M. (Johns.) 109, 2 Pac. 369. 9 — Union Railway & Transit Co. v. Kallaher, 114 111. 325; Gerhauser v. North British & Mercantile Ins. Co., 7 Nev. 174. "The court mod- ified an instruction by erasing the words, 'and the jury must find for the defendant,' with one stroke of the pen, leaving them legible to the jury. It was held that it was the privilege of the appellant to ask leave to rewrite the instruction, or obliterate the rejected words, and, not having done so, she is not in a position - to complain of the action of the court, the instruction being otherwise correct." Allison v. Hagan, 12 Nev. 38. See also, Ger- 466 Instructions to Jueies. [§ 193 It is not necessary that an instruction given should show that a modification was made by the court, and words so indicating should be omitted, but error in this regard is not so material as to justify a reversal. 10 In some states the modifiedlnstruction must be rewritten and given as an instruction of the court, 11 but it has been held that the failure of the court to follow' the statute, by rewriting the instructions as modified, cannot be objected to on appeal where no objection was made until the modified instructions had been read to the jury. 12 hauser v. North British & Merean- court of its own motion. Burns' tile Ins. Co., 7 Nev. 174. Ann. St. 1914, § 561; Wea Tp. Tip- 10 — Manrose v. Parker, 90 111. 581. peoanoe Co. v. Cloyd, 46 Ind. App. 11 — It is not proper to give an 49. instruction asked by a party as a 12 — Baxter v. Baxter, 46 Ind. App. modification. Such instruction can 514. only' be given as one given by the CHAPTER XVI. CONSTRUCTION AND INTERPRETATION OE INSTRUCTIONS. § 194. General rules. § 195. Reasonable and liberal construction. § 196. Construction to support judgment. § 197. Construction as a whole. § 198. Same — Illustrations. § 199. Particular words and phrases. § 194i General rules. The court's instructions are to be considered in their ap- plication to the facts of the case on trial, 1 and in the light of the issues and proof, 2 although it has been held that an instruction applicable to the theory upon which the case is tried is not erroneous, though in the abstract it is not clear. 3 While "instructions must be considered with reference to the possibilities of their interpretation," 4 the charge to the jury should also be judged by its general scope and spirit, 5 and the general effect, rather than casual expres- sions, must govern the interpretation or construction of an instruction. 6 1 — Central of Georgia R. Co. v. 3— Lingle v. Kitchen, 69 Ind. 349. Chicago Varnish Co., 169 Ala. 287. 4 — State v. Chatham Nat. Bank, Instructions must be considered in 10 Mo. App. 482. connection with the facts of the 5 — Paschall v. Williams, 11 N. C. case. Kaler v. Swift & Co., 173 111. 292. The effect of the instructions, App. 135. when taken as a whole, must be 2 — Instructions must be construed considered. Wadhams & Co. v. In- in the light <5f the issues and proof. man, Poulsen & Co., 38 Ore. 143, 63 Petefish v. Becker, 176 111. 448; Chi- Pac. 11. See § 197 post. cago & A. E. Co. v. Pillon, 123 111. 6— Kyle v. Southern Electric Light 570, 5 Am. St Rep. 565, rev'g' 23 111. & Power Co., 174 Pa. St. 570. App. 486. The general effect of a charge is (467) 468 Instructions to Juries. . [§ 194 Where a party, by his counsel, concedes that an instruc- tion given in his favor is erroneous, the court, on appeal, will not look into it to determine whether the concession is properly or improperly made. 7 § 195. Reasonable and liberal construction. The sense of an instruction depends upon how ordinary men understand it and not upon what the ingenuity of counsel can make it mean. 8 "The practical administration of justice should not be defeated by a too rigid adherence to a close and technical analysis of the instructions. ' ' 9 The charge and the language thereof must have a reason- able and not a strained and unreasonable construction, 10 and the jury must be considered to be reasonably intelligent and capable men, sufficiently so as to put such reasonable construction on the charge. 11 Such meaning should be ascribed to an instruction as is to be considered, and hypercritical Coffman v. State, — Tex. Cr. App. objections thereto will not avail. — , 165 S. W. 939; Graham v. State, Knapp v. State, 168 Ind. 153. — Tex. Cr. App. — , 163 S. W. 726. 7 — Blackburn v. Morton, 18 Ark. The charge to the jury "must re- 384. j, ceive a reasonable interpretation." 8 — Dale v. Chicago Junct. Ry. Co., South & North Alabama R. Co. v. 174 111. App. 495; Young v. City of Jones, 56 Ala. 507; First Unitarian Fairfield, 173 111. App. 311; Karg- Soc. of Chicago v. Faulkner, 91 U. S. man v. Carlo, 85 N. J. L..632; Alaska (1 Otto) 415, 23 L. Ed. 283; Bliven S. S. Co. v. Pacific Coast Gypsum Co., v. New England Screw ( Co., 23 How. 78 Wash. 247, 138 Pac. 875. (U. S.) 420, 16 L. Ed. 510. An instruction will not receive It is not proper to seek after some that construction which the profes- far-fetched and unusual signification sional mind might assume the court of the language used, and base a re- intended, but it must be given that versal thereon. The language should meaning which the language used , be given its usual and ordinary would reasonably convey to the jury. meaning. State v. Huxford, 47 Iowa State v. Billings, 77 Iowa 417. 16. 9_People v. Bruggy, 93 Cal. 476, 11— Watts v. Murphy, 9 Cal. App. 29 Pac. 26. 564, 99 Pac. 1104; Coffman v. State, 10— Arnott^v. State, 109 Ark. 378; — Tex. Cr. App. — , 165 S. W. 939; Williams v. State, 168 Ind. 87; Dav- Graham v. State, — Tex. Cr. App. enport v. Cummings, 15 Iowa 219; — , 163 S. W. 726. § 196] Construction and Interpretation. 469 reasonably apparent from all the language employed when fairly construed, 12 and the words should not be subjected to " a nice criticism * * * when the meaning of the in- struction is plain and obvious, and cannot mislead the jury." 13 The- test is, were the jury fairly and fully instructed, or were they misinformed or misled? 14 Hypercritical niceties should be disregarded. 15 § 196. Construction to support judgment. If the language used in an instruction is capable of differ- ent constructions, that construction is to be preferred which will lead to an affirmance of the judgment, unless it can reasonably be said that the instruction was calculated to mislead the jury. 16 : On appeal it will be presumed, if a charge is proper in one sense, that the judge charged in that sense, 17 and where it does not clearly appear to which of two matters the lan- guage of the charge to the jury is applicable, the language will be referred to that matter which would make the charge correct. 18 Where any remark made by the circuit judge will admit of two constructions, — the one against the law and the other in conformity with it, — the latter will be adopted. 19 It is also held on appeal that the construction least favor-, able to the party asking the charge will be adopted. 80 12— Lay Co. v. Mendenhall, 54 Ina. 16— Williams v. State, 168 Tnd. 87; App. 342. People v. MoCallam, 103 N. Y. 587; 13 — Baltimore & P. R. Co. v. Caldwell v. New Jersey Steamboat Mackey, 157 TJ. S. 72, .39 L. Ed. 624, Co., 47 N. Y. 282; Looram v. Second citing Evanston v. Gunn, 99 TJ. S. (9 Ave. R. Co., 11 N." Y. St. 652. Otto) 660, 25 L. Ed. 306, and Rogers 17— Harding v. New York, L. E. & v. The Marshal, 1 Wall. (U. S.) 644, W. R. Co., 36 Hun (N. Y.) 72. 17 L. Ed. 714. 18— State v. Gilreath, 16 S. C. 104. 14 — Burdette v. Chicago Audi- 19 — Rome R. Co. v. Sullivan, 14 torium Ass'n/i^e 111. App. 186. Ga. 277. 15 — South & North Alabama R. 20— Smith v. State, 88 Ala. 23. Co. v. Jones, 56 Ala. 507; ' Paschall v. Williams, UN. C. 292. 470 Instktjctions to Jueies. [§197 § 197. Construction as a whole. It is an elementary and well-settled rule of practice, which has been announced and applied in almost an innumerable number of cases, that instructions are to be construed to- gether and as a whole. 21 The citations in support of this proposition might be mul- tiplied to an almost indefinite extent, but it would serve no 21 — Alabama. Southern E. Co. v. Weatherlow, 164 Ala. 151; Southern By. Co. v. Lynn, 128 Ala. 297; De- catur Car Wheel & Manufacturing Co. v. Mehaffey, 128 Ala. 242; Ala- bama Great Southern E. Co. v. Hill, 93 Ala. 514, 30 Am. St. Eep. 65. Arizona. Lenord v. State, 15 Ariz. 137, 137 Pae. 412. Aikausas. Arnott v. State, 109 Ark. 378; St. Louis, I. M. & S. E. Co. v. Sogers, 93 Ark. 564; Prescott & N. W. E. Co. v. Morris, 92 Ark. 365. California. People v. Watson, 165 Pal. 645; 133 Pac. 298; Valente v. Sierra E. Co. of California, 158 Cal. 412, 111 Pac. 95; Big Three Mining & Milling Co. v. Hamilton, 157 Cal. 130, 107 Pac. 301; 137 Am. St. Eep. 118; Ingalls v. Monte Cristo Oil & • Development Co., 23 Cal. App. 652, 139 Pac. 97; People v. Wah Hing, 15 Cal. App. 195, 114 Pac. 416; An- tonian v. Southern Pae. Co., 9 Cal. App. 718; 100 Pac. 877. Colorado. Poster v. People, 56 Colo. 452, 139 Pae. 10; In re Hayes' Estate, 55 Colo. 340, Ann. Cas. 1914 C 531n, 135 Pac. 449; National Fuel Co. v. Maceia, 25 Colo. App. 441, 139 Pac. 22. Connecticut. Bernier v. Wood- stock Agr. Society, 88 Conn. 558. Florida. Phoenix Ins. Co. v. Bryan, 58 Fla. 341; Kennard v. State, 42 Fla. 581; Eichard v. State, 42 Fla. 528; Gray v. State, 42 Fla. 174. Georgia. Webb v. Wight & Wes- losky Co., 112 Ga. 432; Flemister v. State, 81 Ga. 768. Idaho. Anderson v. Great North- ern E. Co., 15 Idaho 513, 99 Pac. 91. Illinois. Moore v. Aurora, E. & C. E. Co., 246 111. 56, aff' g 150 111. App. 484; Shickle-Harrison & Howard Iron Co. v. Beck, 212 111. 268, aff J g 112 111. App. 444; Baker v. Baker, 202 111. 595; Central E. Co. v. Ban- nister, 195 111. 48, aff'g 96 111. App. 332; Mueller v. Pels, 192 111. 76, aff'g 94 111. App. 353; Fessenden v. Doane, 188 111. 228, aff'g 89 111. App. 229; Howard v. People, 185 111. 552; Pla- cek v. Marquette Third Vein Coal Min. Co., 168 111. App. 335; Coolahan v. Marshall Field & Co., 159 111. App. 466; Hackett v. Harmon, 155 111. App. 55; Moore v. Aurora, E. & C. E. Co., 150 111. App. 484, aff 'd' 246 111. 56; O 'Shaugnnessy v. Chicago City Ey. Co., 144 111. App. 174; Illi- nois Steel Co. v. Swiercz, 135 111. App. 141, rev'd 231 111. 456; Chicago Consol. Traction Co. v. Mahoney, 131 111. App. 591; McMaster v. Spencer, 129 111. App. 131; Thomas v. Mosher, 128 111. App. 479; Chicago City Ey. Co. v. Jordan, 116 111. App. 650, rev'd 215 111. 390; United States Brewing' Co. v. Stoltenberg, 113 111. App. 435, aff 'd 211 111. 531; Chicago & W. I. E. Co. v. Doan, 93 111. App. 247; Mc- Nulta v. Jenkins, 91 111. App. 309; §197] Construction and Inteepeetation. 471 useful purpose to do so, as the proposition has never been denied, and the rule is an obvious and necessary one. As Malott v. Crow, 90 111. App. 628; Johnston v. Hirschberg, 85 111. App. 47. Indiana. Chicago & E. R. Co. v. Dinius, 180 Ind. 596; Johnson v. Johnson, 156 Ind. 592; Surber v. Mayfield, 156 Ind. 375; Anderson v. Anderson, 128 Ind. 254; Coble v. Eltzroth, 125 Ind. 429; Conway v. Vizzard, 122 Ind. 266; Barnett v. State, 100 Ind. 171; Louisville, N. A. & C. By. Co. v. Shanklin, 98 Ind. 573; Olds v. Lochner, — Ind. App. — , 106 N. E. 889; Walley v. Wiley, 56 Ind. App. 171. Iowa. Corell v. "Williams & Hunt- ing, — Iowa — , 148 N. W. 633 Doran v. Waterloo, C. E. & N. By. Co., — Iowa — , 147 N. W. 1100 Stotts v. Fairfield, 163 Iowa 726 Moore v. Pearson, 160 Iowa 449 Witt v. Town of Latimer, 139 Iowa 273. Kansas. City of Wyandotte v. White, 13 Kan. 191. Kentucky. Wiltshire's Adm'x v. Kister, 156 Ky. 168. Maryland. Gill v. Staylor, 93 Md. 453. Michigan. Folks v. Burletson, 177 Mich. 6; Weidman v. Phillips, 159 Mich. 380; Hodgins v. Bay City, 156 Mich. 687, 132 Am. St. Bep. 546; Kirchner v. Detroit City By., 91 Mich. 400; Brown v. McCord & Brad- field Furniture Co., 65 Mich. 360; Watson v. Watson, 58 Mich. 507. Minnesota. Whitaker v. Chicago, St. P., M. & O. E. Co., 115 Minn. 140; Larkin v. City of Minneapolis, 112 Minn. 311; Hanson v. Hellie, 107 Minn. 375. Mississippi. Smith v. State, — Miss. — , 65. So. 498. Missouri. State v. Montgomery, 230 Mo. 660; Scheurer v. Banner Eubber Co., 227 Mo.' 347, 28 L. B. A. (N. S.) 1207n, 21 Ann. Cas, HID; Stoltze v. United Eys. Co. of St. Louis, 183 Mo. App. 304; Pendegrass v. St. Louis & S. F. E. Co., 179 Mo. App. 517; Hales v. Baines, — Mo. App. — , 130 S. W. 425; Luecke v. United Eys. Co., 146 Mo. App. 500; Johnson v. Daily, 136 Mo. App. 534. Montana. Michalsky v. Centennial Brewing Co., 48 Mont. 1, 134 Pac. 307; Band v. Butte Elec. B. Co., 40 Mont. 398, 107 Pac. 87; State v. Whorton, 25 Mont. 11, 63 Pac. 627; Territory v. Hart, 7 Mont. 489, 17 Pac. 718. Nebraska. Cunningham v. Modern Brotherhood of America, 96 Neb. 827; Fink v. Biisch, 83 Neb. 599; Ford v. State, 46 Neb. 390. New Jersey. Sullivan v. North Hudson County E. Co., 51 N. J. L. 518. New York. Caldwell v. New Jer- sey Steamboat Co., 47 N. Y_. 282. North Carolina. Bain v. Lamb, 167 N. C. 304; Bird v. Bell Lumber Co., 163 N. C. 162; Bevis v. City of Ealeigh, 150 N. C. 348. Ohio. Cleveland, C. & C. E. Co. v. Terry, 8 Ohio 370. Oklahoma. First Nat. Bank of Tishomingo v. Ingle, 37 Okla. 276, 132 Pac. 895; Killough v. State, 6 Okla. Cr. 311, 118 Pac. 620. Oregon. Powder Valley State Bank v. Hudelson, — Ore. — , 144 Pac. 494; State v. Goff, 71 Ore. 352, 142 Pac. 564; Astoria Southern B. Co. 472 Instructions to Juries. [§197 has already been noted, it is apparent that a charge cannot usually be given in one paragraph as a whole. It must nec- essarily be given in separate and distinct paragraphs, 22 and accordingly when a paragraph is objected to, it should be read and construed in connection with other para- graphs. 23 v. Pacific Surety Co., 68 Ore. 569, 137 Pac. 857. Pennsylvania. Irvin v. Kutruff, 152 Pa. St. 609. South Carolina. Bryan v. Don- nelly, 87 S. C. 388; Bellamy v. Con- way, C. & W. B. Co., 85 S. C. 450; Black v. Atlantic Coast Line B. Co., 82 S. C. 478; State v. Lee, 58 S. C. 335; State v. Martin, 47 S. C. 67; State v. Boyd, 35 S. C. 269; Bauskett v. Keitt, 22 S. C. 187; Jordan v. Lang, 22 S. C. 159. South Dakota. Duprel v. Collins, 33 8. D. 365. Tennessee. State v. Cagle, 2 Humph. 414. Texas. Good v. Texas & P. By. Co., — Tex. Civ. App. — , 166 S. W. 670; Texas Co. v. Earles, — Tex. Civ. App. — , 164 S. W. 28; Glover v. Houston Belt & Terminal By. Co., — Tex. Civ.' App. — , 163 S. W. 1063; St. Louis, B. & M. By. Co. v. Jen- kins, — Tex. Civ. App. — , 163 S. W. 621; Atchison, T. & S. P. By. Co. v. Bryant, — Tex. Civ. App. — , 162 S. W. 400; Hightower v. State, — Tex. Cr. App. — , 165 S. W. 184; Bus- sey v. State, 71 Tepc. Cr. App. 612; BeynoJds v. State, 71 Tex. Cr. App. 454; Bogers v. State, 71 Tex. Cr. App. J49; Melton v. State, 71 Tex. Cr. App. 130. Utah. Cromeenes v. San Pedro, L. A. & S. L. E. Co., 37 Utah 475, Ann. Cas. 1912 C 307n, 109 Pac. 10. Virginia. Higgins v. Whitmore, 116 Va. 414; Peek v. City of Hamp- ton, 115 Va. 855; Adamson's Adm'r v. Norfolk & P. Traction Co., Ill Va. 556; Longley v. Com., 99 Va. 807. Washington. Munson v. Johnson, 80 Wash. 628, 142 Pac. 18; Gosky v. Seattle Taxicab & Transfer Co., 79 Wash. 425, 140 Pac. 342; Harkins v. Seattle Elee. Co., 53 Wash. 184, 101 Pac. 836; Bangenier v. Seattle Elec. Co., 52 Wash. 401, 100 Pac. 842; Cook v. Pitt'ock & Leadbetter Lumber Co., 51 Wash. 316, 98 Pac. 1130. West Virginia. State v. Hamrick, — W. Va. — , 81 S. E. 703; Parkers- burg Nat. Bank v. Hannaman, 63 W. Va. 358. Wisconsin. Tuckwood v. Han- thorn, 67 Wis. 326. United States. Northern Pac. B. Co. v. Babcock, 154 U. S. 190, 38 L. Ed. 958; Congress & Empire Spring Co. v. Edgar, 99 U. S. (9 Otto) 645, 25 L. Ed. 487; Charles v. United States, 130 C. C. A. 221, 213 Fed. 707, Ann. Cas. 1914 D 1251n. 22 — See § 12, et seq., ante. And see also the following eases: St. Louis, I. M. & S. B. Co. v. Rogers, 93 Ark. 564; Curtis & Gartside Co. v. Pigg, 39 Okla. 31, 134 Pac. 1125; Graham v. State, — Tex. Cr. App. — , 163 S. W. 726; Christian v. State, 71 Tex. Cr. App. 566; Bogers v. State, 71 Tex. Cr. App. 149; Wallace v. Skin- ner, 15 Wyd 233, 88 Pac. 221. 23— Glover v. Pfeuffer, — Tex. Civ. App. — , 163 S. W. 984; Pt. § 197] CONSTRUCTION AND InTEKPEETATION. 473 It is unfair to the trial court to take isolated paragraphs and complain of them, 24 or to criticize a single sentence or expression as incorrect. 25 Each instruction must be read as a whole and all of its parts must be considered in determining its meaning. 26 A portion of an instruction must be construed and inter- preted in the light of what preceded and followed. 27 "A fragmentary excerpt from the charge of the court, isolated from its context, may be amenable to criticism, but when this fragment is replaced in its proper setting, and the instruction upon the subject to which it is applicable is viewed as a whole, every semblance of error therein may be dissolved and disappear." 28 The whole law applicable to a case can rarely be given in a single instruction, 23 and as a general rule it is not required Worth & D. C. Ey. Co. v. Taylor, — Tex. Civ. App. — , 162 S. W. 967; Posener v. Harvey, — Tex. Civ. App.- — , 125 S. W. 356; Roberts v. State, — Tex. Cr. App. — , 168 S. W. 100. 24— Brown v. State, 72 Tex. Cr. App. 33. 25 — Ingalls v. Monte Cristo Oil & Development Co., 23 Cal. App. 652, 139 Pac. 97; Eggleston v. State, 59 * Tex. Cr. App. 542. It would be difficult, if not im- possible for any judge or court to deliver a proper instruction orally or in writing from which parts of sentences could not be taken that standing alone, would be error. Southern Hardware & Supply Co. v. Standard Equipment Co., 165 Ala. 582. 26 — Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140. In determining the sufficiency of a charge, it must be construed as a whole and not by isolated extracts, excerpts or paragraphs. Coffman v. State, — Tex. Cr. App. — , 165 S. W. 939; Graham v. State, — Tex. Cr. App. — , 163 S. W. 726; Christian v. State, 71 Tex. Cr. App. 566. 27 — Doran v. Waterloo, C. F. & N. Ey, Co., — Iowa — , 147 N. W. 1100. The charge must be treated as an entirety, and regard must be had to the connection and interdependence of its several parts. Coffman v. State, — Tex. Cr. App. — , 165 S. W. 939; Graham v. State, — Tex. Cr. App. — , 163 S. W. 726 - s Christian v. State,' 71 Tex. Cr. App. 566. 28 — Bishop v. Georgia Nat. Bank, 13 Ga. App. 38. Error in a single expression is not ground for reversal where the charge as a whole is correct. Wheeler v. Cole, 164 N. C. 378; Howard v. Washington Water Power Co., 75 Wash. 255, 134 Pac. 927. 29 — Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140; People v. Watson, 165 Cal. 645, 133 Pac. 298; People v. Wah Hing, 15 Cal. App. 195, 114 Pae. 416; Thain v. State, — Ind. — , 106 N. E. 690. 474 .Instructions to Juries. [§197 that each separate instruction, must embody every fact or element essential to sustain or defeat an action. 30 Nor need an instruction contain in itself all the qualifica- Each instruction given need not embrace all the issues, or the whole case, or the whole of any branch of the ease. Alabama. Hawkins v. Hudson, 45 Ala. 482. Arkansas. St. Louis, I. M. & S. Ry. Co. v. Baker, 67 Ark. 531. California. People v. Clark, 84 Cal. 573, 24 Pac. 313; People v. Tarn- kin, 62 Cal. 468; People v. Morine, 61 Cal. 367. Illinois. City of Rock Island v. Starky, 189 111. 515. Indiana. Bundy v. McKnight, 48 Ind. 502; Hayes v. West, 37 Ind. 21; Taylor v. Wootan, 1 Ind. App. 188, 50 Am. St. Rep. 200. Iowa. Hunger v. City of Water- loo, 83 Iowa 559; Chapin v. Chicago, M. & St. P. Ry. Co.,' 79 Iowa 582; Deere v. Wolf, 77 Iowa 115; Timins v. Chicago, R. I. & P., Ry. Co., 72 Iowa 94; Funston v. Chicago, R. I. & P. R. Co., 61 Iowa 452. Kansas. State v. Kyne, 10 Kan. App. 277, 62 Pac. 728. Kentucky. Welsh v. Com. (Ky.), 60 S. W. 185. Michigan. Anderson v. Walter, 34 Mich. 113. Minnesota. Peterson v. Chicago, M. & St. P. By. Co., 38 Minn. 511. Mississippi. Clisby v. Mobile & O. R. Co., 78 Miss. 937. Missouri. Schroeder v. Michel, 98 Mo. 43; Dougherty v. Missouri R. Co., 97 Mo. 647; Muehlhausen v. St. Louis R. Co., 91 Mo. 332; Karle v. Kansas City, St. J. & C. B. R. Co., 55 Mo. 476; McKeon v. Citizens' Ry. Co., 43 Mo. 405; Shaw v. Missouri & K. Dairy Co., 56 Mo. App. 521; Fletcher v. Milburn Mfg. Co., 35 Mo. App. 321. Nebraska. Nebraska Nat. Bank v. Burke, 44 Neb. 234. North Carolina. Barringer v. Burns, 108 N. C. 606. Ohio. Ohliger v. City of Toledo, 20 Ohio Cir. Ct. R. 142, 10 Ohio Cir. Dee. 762. Oregon. Smitson v. Southerri Pac. Co., 37 Ore. 74, 60 Pac. 907. Texas. Freiberg v. Johnson, 71 Tex. 558. 30— State v. Byrd, 41 Mont. 585, 111 Pac. 407; Grant v. Milam, 20 Okla. 672, 95 Pae. 424. No single instruction is required to contain all the law applicable to the case. If it is correct as to the statement of the law with reference to the matter upon which it pur- ports to advise the jury, it is suf- ficient. Harrod v. Bisson, 48 Ind. App. 549. It is not essential that a single instruction should embody the entire law of the case, and the omission to state the entire law in one instruc- tion is not error if the omission is reasonably supplied elsewhere, so that the charge as a whole fully and fairly states the law applicable to the issues. First Nat. Bank of Tishomingo v. Ingle, 37 Okla. 276, 132 Pac. 895. Each separate instruction need not cover the entire ease provided there is no conflict in the law as stated, and the different instructions con- sidered as a , whole fairly present the law of the case. Grant v. Milam, 20 Okla. 672, 95 Pac. 424. § 197] Construction and Interpretation. 475 tions and conditions necessary to render it correct and ap- plicable to the case at bar. 31 The proper qualification may be made in separate instruc- tions. 32 . The "trial judge cannot be expected to reiterate every qualification and condition with every clause of the charge. 33 Omissions of one instruction may be supplied by the con- tents of another, 34 and when reference is made in one in- 31 — California. People v. Etting, 99 Cal. 577, 34 Pac. 237; People v. Clark, 84 Cal. 573, 24 Pac. 313; Peo- ple v. Hurtado, 63 Cal. 288; People v. Welch, 49 Cal. 174; People v. Doyell, 48 Cal. 85. Indiana. Taylor v. Wootan, 1 Ind. App. 188, 50 Am. St. Rep. 200. Iowa. Rice v. City of Des Moines, 40 Iowa 638. Minnesota. Gates v. Manny, 14 Minn. 21. Missouri. Perrette v. City of Kan- sas City, 162 Mo. 238. New York. Hickenbottom v. Del- aware, L. & W. R. Co., 122 N. Y. 91. Oregon. Farmers' & Traders' Nat. Bank v. Woodell, 38 Ore. 294, 61 Pac. 837, 65 Pac. 520. 32 — California. People v. Clark, 84 Cal. 573, 24 Pac. 313'; Davis v. Button, 78 Cal. 247, 18 Pac. 133, 20 Pac. 545; Bradley v. Lee, 38 Gal. 362. Colorado. De St. Aubin v. Mar- shall Field & Co., 27 Colo. 414, 62 Pac. 199. Florida. Keech v. Enriquez, 28 Fla. 597. Georgia. City Council of Augusta v. Tharpe, 113 Ga. 152. Illinois. West Chicago St. By. Co. v. Kromshinsky, 185 111. 92. Iowa. Allen v. Burlington, C. R. & N. B. Co., 57 Iowa 623; Lombard v. Chicago, R. I. & P. R. Co., 47 Iowa 494; Stier v. City of Oskaloosa, 41 Iowa 353. Missouri. Meyer v. Southern By. Co. (Mo.?, 36 S. W. 367. Nebraska. Omaha Fair & Exposi- tion Ass'n v. Missouri Pac. Ry. Co., 42 Neb. 105. Oregon. Smitson v. Southern Pac. Co., 37 Ore. 74, 60 Pac. 907. South Carolina. Fletcher v. South Carolina & G. E. R. Co., 57 S. C. 205; Thackston v. Port Royal & W. C. Ry. Co., 40 S. C. 80. 33— Watson v. Watson, 58 Mich. 507. 34 — Placek v. Marquette Third Vein Coal Min. Co., 168 111, App. 335; Evansville & T. H. R. Co. v. Hoffman, 56 Ind. App. 530; Gambino v. Manufacturers' Coal & Coke Co., 180 Mo. App. 643; St. Louis, B. & M. Ry. Co. v. Jenkins, — Tex. Civ. App. — , 163 S. W. 621. The mere incompleteness of an in- struction is not ground for con- demning it, unless it is so erroneous in itself or so in conflict with some of the Others that both cannot stand as correct expositions of the law. Colono v. Consolidated Coal Co., 147 111. App. 327; State v. Johnson, 162 Iowa 597. An incomplete statement in one instruction may be cured by a sup- 476 Instructions to Juries. [§ 197 struction to some other part of the charge., or when words are used in some instructions that are correctly defined in others, the other parts of, the charge referred to and the other instructions must be considered in determining whether or not the particular instructions under considera- tion are correct. 35 Eeversal will not necessarily follow the giving of a de- fective instruction if, when taken in connection with the other charges, the law of the case is fairly given, 36 and no one instruction should be condemned as reversible error if it appears to be entirely clear as a guide to the jury when read with the others given in the case. 37 An entire oral charge must be construed as a unit, 38 and oral charges are to be read and construed together with written charges. 39 If two instructions are given on the same subject they should be considered together, 40 and where two instructions construed together fairly state the law, the case will not be reversed for error existing in one of them. 41 The general charge must be construed in connection with the special charges, and errors or defects in the general charge may be cured by correct special instructions. 42 But plemental statement in another, if 37 — Stoltze v. United Rys. Co. of when both are read together the St. Louis, 183 Mo. App. 304. court can see that the jury could 38 — Swancutt ' v. W. M. Trout not have been 1 misled by the incom- Auto Livery Co., 176 111. App. 606. plete charge. Higgins v. Whitmore, 39 — Roberson v. State, 183 Ala. 116 Va. 414. . 43. Where an omission is cured by 40 — Utah Ass'n of Credit Men v. other instructions plainly and in- Boyle Furniture Co., 43 Utah 523, telligently submitting the omitted 136 Pac. 572. evidence to the jury, the error is cor- 41 — Chickasha St. R. Co. v. Mar- rected. Johnson v. Springfield Trae- shall, 43 Okla. 192, 141 Pac. 1172. tion Co., 176 Mo. App. 174. 42 — Hammett v. Brown, 60 Ala. 35 — Southern Anthracite Coal Co. 498; Hemmingway v. Garth, 51 Ala. v. Bowen, 93 Ark. 140. 530; Simpson v. Krumdick, 28 Minn. 36— Ryan v. City of Chicago, 181 352; Claflin v. Swoyer, 5 Kulp (Pa.) 111. App. 642; Corell v. Williams & 107; Missouri, K. & T. Ry. Co. of Hunting, — Iowa — , 148 N. W. 633. Texas v. Rodgers, 89 Tex. 675; Gold- § 197] Construction and Interpretation. 477 it is usually held that errors in the specific charges are not cured by the correctness of the general charge. 43 The rule that instructions must be read together and con- sidered as a whole is frequently applied rather liberally. 44 If, when so construed, the instructions are fair and correct as a whole, and justice has been done, it is immaterial that a part or one or more of the instructions, considered sepa- rately, are erroneous. In such case the error is harmless, and not ground for reversal. 45 berg v. McCracken (Tex.), 8 S. W. 676; Campbell v. Fisher (Tex. Civ. App.), 24 S. W. 661. 43 — Tragdon v. State, 133 Ind. 1; Pittsburgh, C. & St. L. Ry. Co. v. Krouse, 40 Ohio St. 217, 48 Am. Rep. 676; Rice v. Olin, 79 Pa. St. 391; Murray v. Com., 79 Pa. St. 311; Baxter v. Waite, 2 Wash. T. 228, 6 Pac. 429. But see Pierce v. Cloud, 42 Pa. St. 102, 82 Am. Dec. 496. An obscure answer to a point may be aided by the general charge, but not an erroneous one. Rice v. Olin, 79 Pa. St. 391; Murray, v. Com., 79 Pa. St. 311. 44 — Langstaff-Orm Mfg. Co. v. Wilford, 160 Ky. 733. 45 — Alabama. Southern Ry. Co. v. Lynn, 128 Ala. 297; Montgomery & 'E. Ry. Co. v. Stewart, 91 Ala. 421. Arkansas. Hurley v. State, 29 Ark. 17. California. People v. Emerson, 130 Cal. 562, 62 Pac. 1069; Ballou v. Andrews Banking Co., 128 Cal. 562, 61 Pac. 102; People v. Anderson, 105 Cal. 32, 38 Pac. 513; Murray v. White, 82 Cal. 119, 23 Pac. 3,5; Peo- ple v. Lee Chuck, 78 Cal. 317, 20 Pac. 719. Colorado. Simonton v. Rohm, 14 Colo. 51, 23 Pac. 86; Dozenback v. Raymer, 13 Colo. 451, 22 Pac. 787; Coleman v. Davis, 13 Colo. 98, 21 Pac. 1018; Hrad v. Atkins, 1 Colo. App. 449, 29 Pac. 528. Florida. Kennard v. State, 42 Fla. 581. Georgia. Webb v. Wight & Wes- . losky Co., 112 Ga. 432. Idaho. Territory v. Evans, 2 Idaho 391, 17 Pac. 139. Illinois. Fessenden v. Doane, 188 111. 228; Howard v. People, 185 HI. 552; Ritzman v. People, 110 HI. 363; City of Peoria v. Simpson, 110 111. 294, 51 Am. Rep. 683; Toledo, W. & W. Ry. Co. v.'lngraham, 77 111. 309; Chicago & W. I. R. Co. v. Doan, 93 111. App. 247; Johnston v. Hirsch- berg, 85 111. App. 47. Indiana. McCaughey v. State, 156 Ind. 41; Wabash & W. Ry. Co. v. Morgan, 132 Ind. 430; Craig v. Fra- zier, 127 Ind. 286; Cowger v. Land, 112 Ind. 263; Boyle v. State, 105 Ind. 469, 55 Am. Rep. 218; Conrad v. Kin- zie, 105 Ind. 281; Lemmon v. Moore, 94 Ind. 40; MeDermott v. State, 89 Ind. 187; Branstetter v. Dorrtmgh, 81 Ind. 527; Eggleston v. Castle, 42' Ind. 531; Citizens' St. Ry. Co. v. Mere, 26 Ind. App. 284. Iowa. State v. Murdy, 81 Iowa 603; Jamison v. Weaver, 81 Iowa 212; Riegelmarr v. Todd, 77 Iowa 696; Harrison v. Snair, 76 Iowa 558; 478 Instructions to Juries. [§197 This rule is, of course, always subject to the qualification that the jury must not have been misled by the alleged error State v. Pugsley, 75 Iowa 743; Helt v. Smith, 74 Iowa 667; Knapp v. Sioux City & P. R. Co., 71 Iowa 41; Albertson v. Keokuk & D. M. R. Co., 48 Iowa 292. Kansas. Hays v. Farwell, 53 Kan. 78, 35 Pac. 794; Cain Bros. Co. v. Wallace, 46 Kan. 138, 26 Pae. 445; Central Branch Union Pae. R. Co. v. Andrews, 41 Kan. 370, 21 Pae. 276; State v. Yarborough, 39 Kan. 581, 18 Pac. 474; State v. Dickson, 6 Kan. 209. ' Kentucky. Rucker v. Hamilton, 3 Dana 43. Louisiana. State v. Hannibal, 37 La. Ann. 619; State v. Ferguson, 37 La. Ann. 51. Maryland. Gill v. Staylor, 93 Md. 453. Michigan. Cleveland v. Miller, 94 Mich. 97; Pray v. Cadwell, 50 Mich. 222; Dibble v. Nash, 47 Mich. 589; Driscoll v. People, 47 Mich. 413; Frankel v. Coots, 41 Mich. 75; Green- lee v. Lowing, 35 Mich. 64; McGin- nis v. Kempsey, 27 Mich. 363. Minnesota. Spencer v. Tozer, 15 Minn. 146 (Gil. 112). Mississippi. Hawthorne v. State, 58 Miss. 778; Evans v. State, 44 Miss. 731; Mask v. State, 7 George 77. Missouri. State v. Miller, 159 Mo. 113; Harrington v. City of Sedalia, 98 Mo. 583; State v. Mathews, 98 Mo. 125; Reilly v. Hannibal & St. J. R. Co., 94 Mo. 600; Wallich v. Mor- gan, 39 Mo. App. 469; Missouri P. R. Co. v. Schoennen, 37 Mo. App. 612; Blaydes v. Adams, 35 Mo. App. 526; Chicago, S. F. & C. Ry. Co. v. Vivian, 33 Mo. App. 583; State v. Gregory, 30 Mo. App. 582. Montana. State v. Whorton, 25 Mont. 11, 63 Pac. 627. Nebraska. Omaha & C. B. Railway & Bridge Co. . v. Levinston, 49 Neb. 17. Nevada. State v. Raymond, 11 Nev. 98;. Caples v. Central Pac. R. Co., 6 Nev. 265. New York. Looram v. Secorfd Ave. R. Co., 11 N. Y. St. 652. North Carolina. Lewis v, Albe- marle & R. R. Co., 95 N. C. 179. Oregon. Farmers ' & Traders ' Nat. Bank v. Woodell, 38 Ore. 294, 61 Pac. 837, 65 Pac. 520. Pennsylvania. Lehigh Val. R. Co. v. Brandtmaier, 113 Pa. St. 610. South Carolina. State v. Lee, 58 S. C. 335; McGhee v. Wells, 57 S. C. 280, 76 Am. St. Rep. 567; State v. Butler, 47 S. C. 25; Ballou v. Young, 42 S. C. 170; State v. Williams, 35 S. C. 344; State v. Banister, 35 S. C. 290. Texas. St. Louis & S. F. Ry. Co. v. McLain, 80 Tex. 85; Rost v. Mis- souri Pac. Ry. Co., 76 Tex. 168; Prid- ham v. Weddington, 74 Tex. 354; Fort Worth & D. C. Ry. Co. v. Hog- sett, 67 Tex. 685; Ross v. State, 29" Tex. 499; Wood v. Chambers, 20 Tex. 247, 70 Am. Dec. .382; Robinson v. Varnell, 16 Tex. 382; Mercer v. Hall, 2 Tex. 284; Hodges v. State, 22 Tex. App. 415; Street v. State, 7 Tex. App. 5; Jobe v. Houston (Tex. Civ. App.), 23 S. W. 408; Spears v. State, 41 Tex. Cr. App. 527. Utah. McCornick v. Queen of Sheba Gold, Mining & Milling Co., 23 Utah 71, 63 Pac. 820; People v. Sensabaugh, 2 Utah 473; Nickles v. Wells, 2 Utah 167. §197] Construction and Interpretation. 479 to the prejudice of the party complaining, and in most cases the rule is stated with this qualification. 46 Mere insufficiency in an instruction correct as far as it goes may be cured by other instructions. 47 So, mere am- West Virginia. Huffman v. Alder- son 'a Adm'r, 9 W. Va. 616. United States. Evanston v. Gunn, 99 U. S. (9 Otto) 660, 25 L. Ed. 306; Gregg v. Moss, 14 "Wall. 564, 20 L. Ed. 740; Western Coal & Mining Co. v. Ingraham, 17 C. C. A. 71, 70 Fed. 219. 46 — Alabama. Alabama Consol. Coal & Iron Co. v. Heald, 168 Ala. 626; Louisville & N. R. Co. v. Orr, 94 Ala. 602; Magee v. Billingsley, 3 Ala. 680. Arkansas. Wilcox v. Hebert, 90 Ark. 145. California. Hanscom v. Drullard, 79 Cal. 234, 21 Pae. 736; People v. Cleveland, 49 Cal. 578; Carrington v. Pacific Mail Steamship Co., 1 Cal. 475. Colorado. Finerty v. Fritz, 6 Colo. 136; Patrick Red Sandstone Co. v. Skoman, 1 Colo. App. 323, 29 Pac. 21. Connecticut. Collins v. Richmond Stove Co., 63 Conn. 361; Morehouse v. Remson, 59 Conn. 401; Knowles v. Crampton, 55 Conn. 344. Illinois. North Chicago St. R. Co. v. Boyd, 156 111. 416; Spies v. Peo- ple, 122 111. 1, 3 Am. St. Rep. 320n; Toledo, W. & W. By. Co. v. Ingra- ham, 77 111. 309; Lodge v. Gatz, 76 111. 272; Springdale Cemetery Ass'n v. Smith, 24 111. 480. Indiana. Coble v. Eltzroth, 125 Ind. 429; Hutchins v. Weldin, 114 Ind. 80; Kopelke v. Kopelke, 112 Ind. 435; Louisville, N. A. & C. Ry. Co. v. Jones, 108 Ind. 551; Stockwell v. Brant, 97 Ind. 474; Stout v. State, 96 Ind. 407; Siebert v. State, 95 Ind. 471; Young v. Clegg, 93 Ind. 371; Cleveland, C, C. & I. Ry. Co. v. Bates, 91 Ind. 289. Iowa. Parker v. Dubuque South- western R. Co., 34 Iowa 399; Smoth- ers v. Hanks, 34 Iowa 286, 11 Am. Rep. 141; Brown v. Bridges, 31 Iowa 138; Ferguson v. Beadle, 30 Iowa 477. Kansas. Lawder v. Hinderson, 36 Kan. 754, 14 Pac. 164. Michigan. Daniels v. Clegg, 28 Mich. 32. Mississippi. Nelson v. State, 61 Miss. 212. Missouri. First Nat. Bank of Bur- lington v. Hatch, 98 Mo. 376; Mc- Dowell v. Friedman Brtas. Shoe Co., 135 Mo. App. 276; Ferris v. Chicago, S. F. & C. R. Co., 51 Mo. App. 297. New York. People v. Dimick, 107 N. Y. 13; Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282. South Dakota. State v. Brennan, 2 S. D. 384. Texas. Vaughan v. State, 21 'Tex. 752; Able v. Lee, 6 Tex. 427; Bayne v. State, 29 Tex. App. 132; Rand v. C. R. Johns & Sons (Tex. App.) 15 S. W. 200. Vermont. Fassett v. Town of Rox- bury, 55 Vt. 552. Washington. State v. Rosener, 8 Wash. 42, 35 Pac. 357. United States. Village of Evans- ton v. Gunn, 99 U. S. 660, 25 L. Ed. 306; Washington & G. R. Co. v. Gladmon, 15 Wall. 401, 21 L. Ed. 114. 47 — Alabama. Johnson v. State, 81 Ala. 54. 480 Instructions to Juries. [§197 biguity, uncertainty, or a misleading tendency may be thus cured. 48 Verbal inaccuracies, obscurity and loose expres- Arkansas. Lowe v. Hart, 93 Ark. 548. California. Hearne v. De Young, 132 Cal. 357, 64 Pac. 576; People v. Wallace, 109 Cal. 611, 42 Pao v 159. Colorado. Doherty v. Mprris, 17 Colo. 105, 28 Pac. 85. Florida. Keech v. Enriquez, 28 Pla. 597; Montgomery v. Knox, 23 Fla, 595. Illinois. Burt v. Garden City Sand Co., 237 111. 473. Indiana. Chicago. St. L. & P. E. Co. v. Spilker, 134 Ind. 380; Evans- ville & T. H. E. Co. v. Talbot, 131 Ind. 221; Western U. Tel. Co. v. Bus- kirk, 107 Ind. 549; Louisville, N. A. & C. Ey. Co. v. Grantham, 104 Ind. 353; Stockwell v. Brant, 97 Ind. 474; Young v. Clegg, 93 Ind. 371; Western U. Tel. Co. jr. Young, 93 Ind. 118; Wright v. Nipple, 92 Ind. 310; Smurr v. State, 88 Ind. 504; Walker v. Hel- ler, 73 Ind. 46; Binns v. State, 66 Ind. 428; Achey v. State, 64 Ind. 56; Jones v, State, 49 Ind. 549; Pitts- burgh, C, Cl. & St. L. Ey. Co. v. Noftsger, 26 Ind. App. 614; Maxon v. Clark, 24 Ind. App. 620; Menden- hall'v. Stewart, 18 Ind. App. 262; Lake Erie & W. E- Co. v. Carson, 4 Ind. App. 185. Iowa. De Goey v. Van Wyk, 97 Iowa 491; Shively v. Cedar Eapids, I. F. & N. W. Ey. Co., 74 Iowa 169, 7 Am. St. Eep. 471; State v. Calkins, 73 Iowa 128. Mississippi. Cook v. State (Miss.) 28 So. 833. Nebraska. Parsons v. State, 61 Neb. 244. New York. Hickenbottom v. Del- aware, L. & W. E. Co., 122 N. Y. 91. North Carolina. Barringer v. Burns, 108 N. C. 606." Oregon. State v. Savage, 36 Ore. 191, 60 Pac. 610, 61 Pac. 1128. Texas. Smith v. State, 22 Tex. App. 316. 48— Alabama. Koosa & Co. v. Warten, 158 Ala. 496. Arkansas. Junction City Lumber Co. v. Sharp, 92 Ark. 538; Eitzpatrick v. State, 37 Ark. 238; Burton v. Mer- rick, 21 Ark. 357. Calif ornia. Doty v. O 'Neil, 95 Cal. 244, 30 Pac. 526; People v. Chun Heong, 86 Cal. 329, 24 Pac. 1021; People v. Turcott, 65 Cal. 126, 3 Pac. 461; People v. Hunt, 59 Cal. 430; Livermore v. Stine, 43 Cal. 274. Florida. Pensacola Elec. Co. v. Bissett, 59 Fla. 360; Kennard v. State, 42 Ela. 581; Gray v. State, 42 Fla. 174. Illinois. Cleveland, C, C. & St. L. Ey. Co. v. Keenari, 190 111. 217; Milling v. Hillenbrand, 156 111. 310; Tedens v. Sanitary Dist. of Chicago, 149 111. 87; Illinois Cent. E. Co. v. Swearingen, 47 111. 206. Indiana. Cleveland, C, 0. & I. Ey. Co. v. Bates, 91 Ind. 289. Iowa. Eiegelman v. Todd, 77 Iowa 696. Kansas. State v. MeLafferty, 47 Kan. 140, 27 Pac. 843; Gillett v. Corum, 7 Kan. 156. Kentucky. Clark v. Fox, 9 Dana 195. Michigan. Noble v. Bessemer, Steamship Co., 127 Mich. 103, 54 L. E. A. 456, 89 Am. St. Eep. 461; Peo- ple v. Eicketts, 108 Mich. 584; Hart v. Walker, 100 Mich. 406;' Wreggitt §197] Construction and Interpretation. 481 sions in an instruction may be cured by other instructions, 49 but the giving of instructions not correct, when considered alone or in connection with other instructions, is reversible error. 50 The rule that the charge is to be taken as a whole does not apply where it has inconsistent and contradictory para- graphs, 51 and error in one instruction is not obviated by the giving of other conflicting instructions. 52 v. Barnett, 99 Mich. 477; Fisher v. People, 20 Mich. 135. Minnesota. Simpson v. Krumdick, 28 Minn. 352. Missouri. Meyer v. Southern Ry. Co. (Mo.), 36 S. W. 367; McGrew v. Missouri Pac. Ry. Co., 109 Mo. 582; Goetz v. Hannibal & St. J. R. Co., 50 Mo. 472; Milligan v. Chicago, B. & Q. R. Co., 79 Mo. App.. 393, 2 Mo. App. 459; McNichols v. Nelson, 45 Mo. App. 446; Suttie v. Aloe, 39 Mo. App. 38. Nebraska. Bingham v. Hartley, 44 Neb. 682; Omaha Pair & Exposi- tion Ass'n v. Missouri Pac. Ry. Co., 42 Neb. 105. Nevada. State v. Ah Mook, 12 Nev. 369. North Carolina. Marcom v. Raleigh & A. A. L. R. Co., 126 N. C. 200. Texas. Bell v. Martin (Tex. Civ. App.) 28 S. W. 108. Washington. Engelking v. City of Spokane, 59 Wash. 446, 1 N. C. C. A. 142, 29 L. R. A. (N. S.) 481n, 110 Pac. 25; State v. Rosener, 8 Wash. 42, 35 Pac. 357; Schmieg v. Wold, 1 Wash. T. 472. Wisconsin. West v. Milwaukee, L. S. & W. Ry. Co., 56 Wis. 318. 49 — Alabama. Alabama Consol. Coal & Iron Co. v> Heald, 168 Ala. 626. Blashfield Vol. 1—31 California. Hill v. Finigan, 77 Cal. 267, 11 Am. St. Rep. 279n, 19 Pac. 494; Wilson v. Southern Pac. R. Co., 62 Cal. 164. Indiana. Johnson v. Johnson, 156 Ind. 592; Louisville, N. A. & C. Ry. Co. v. Wright, 115 Ind. 378, 7 Am. St. Rep. 432; Cline v . Lindsey, 110 Ind. 337; Louisville, N. A. & C. Ry. Co. v. Jones, 108 Ind. 551; Brown v. State, 105 Ind. 385; §iebert v. State, 35 Ind. 471; Stout v.. State, 90 Ind. 1; Pittsburgh, C. & St. L. R. Co. v. ' Noel, 77 Ind. 110. Iowa. Harger v. Spofford, 46 Iowa 11. Nebraska. Bingham v. Hartley, 44 Neb. 682. United States. Rogers v. The Mar- shal, 1 Wall. 644, 17 L. Ed. 714. 50 — Langstaff-Orm Mfg. Co. v. Wilford, 160 Ky. 733. Where an instruction deals with a material proposition or issue of the case and is erroneous, the presump- tion is that the error was harmful. Evansville & T. H. R. Co. v. Hoff- man, 56 Ind. App. 530. 51 — St. Louis Southwestern Ry. Co. of Texas v. Green, — Tex. Civ. App. — , 138 S. W. 241. 52— West Chicago St. Ry. Co. v. Winters, 107 111. App. 221. See also, Cromer v. Borders Coal Co., 246 111. 451. A correct instruction > does not 482 Instructions to Juries. [§ 197 The giving of an instruction announcing an erroneous rule of law is not cured by another instruction containing a correct statement of the rule. 53 A subsequent instruction cure the error in a conflicting incor- rect charge. McLemore v. State, 111 Ark. 457; Patterson v. Evans, 254 Mo. 293. "A correct instruction does not necessarily cure an error in another instruction, unless, as a series, the instructions state the law cor- rectly." Chicago North Shore St: Ry. Co. v. Hebson, 93 111. App. 98. An erroneous instruction putting the burden of proof as to a particular defense upon the defendant in a criminal ease is not cured by a gen- eral charge upon the burden of proof and the doctrine of reasonable doubt. State v. Grinstead, 10 Kan. App. 74, 61 Pac. 975; People v. Shanley, 49 -App. Div. (N. Y.) 56. Contra, State v. Freeman, 100 N. C. 429. Instructions must be construed to- gether where not repugnant. Gray- ville Waterworks v. Burdick, 109 111. App. 520; Thompson v. Koperlski, 109 111. App. 466. 53 — A 1 a b a m a. Schieff elin v. Schieffelin, 127 Ala. 14. California. — People v. Marshall, 112 Cal. 422,44 Pac. 718; Sappenfield v. Main St. & A. P. B. Co., 91 Cal. 48, 27 Pac. 590; People v. Wong Ah Ngow, 54 Cal. 151, 35 Am. Rep. 69. Colorado. Mackey v. People, 2 Colo. 13. District of Columbia. Boswell v. District of Columbia, 21 D. C. 526. Illinois. Steinmeyer v. People, 95 111. 383; Wabash E. Co. v. Henks, 91 111. 406; Illinois Linen Co. v. Hough, • 91 111. 63; Camp Point Mfg. Co: v. Ballow, 71 111. 417; Quinn v. Dono- van, 35 111. 194; Gedney v. Gedney, 61 111. App. 511; City of Joliet v. Walker, 7 111. App. 267; Sweet v. Lea<5h, 6 111. App. 212; Gale v. Rec- tor, 5 111. App. 481; Ottawa, O. & P. River Val. R. Co. v. McMath, 4 111. App. 356; Shugart- v. Halliday, 2 111. App. 45. Indiana. Plummer v. State, 135 Ind. 308; McCrory v. Anderson, 103 Ind. 12; Hudelson v. State, 94 Ind. 426, 48 Am. Rep. 171; Uhl v. Binga- man, 78 Ind. 365; Binns v. State, 66 Ind. 428; Achey v. State, 64 Ind. 56; Guetig v. State, 63 Ind. 278; Toledo, W. & W. Ry. Co. v. Shuckman, 50 Ind. 42. Kansas. Home v. State, 1 Kan. 42, 81 Am. Dec. 499. Kentucky. Clay's Heirs v. Mil- ler, 3 T. B. Mon. 146. Louisiana. State v. Jones, 36 La. Ann. 204. Minnesota. Gorstz v. Pinske, 82 Minn. 456, 83 Am. St. Rep. 441. Missouri. State v. McNally, 87 Mo. 644; Glascock v. Chicago & A. R. Co., 69 Mo. 589; Hickaur v. Grif- fin, 6 Mo. 37, 34 Am. Dec. 124; Baer v. Lisman, 85 Mo. App. 317; Billups v. Daggs, 38 Mo. App. 367; McBeth v. Craddock, 28 Mo. App. 380; Singer Mfg. Co. v. Hudson, 4 Mo. App. 145; State v* Laurie, 1 Mo. App. 371. Nebraska. Jensen v. Halstead, 61 Neb. 249; Swift & Co. v. Holoubek, 60 Neb. 784; Barr v. State, 45 Neb. 458; Richardson v. Halstead, 44 Neb. 606; Carson v. Stevens, 40 Neb. 112, 42 Am. St. Rep. 661; Wasson v. Pal- mer, 13 Neb. 376/ Pennsylvania. Rice v. Olin, 79 Pa. §197] CONSTRUCTION AND INTERPRETATION. 483 will not revoke a previous one by implication, 54 and an oral statement of a judge has been held not equivalent to an instruction curing an error. 55 Where an instruction is so far erroneous that another correct instruction is necessarily contradictory, the only way to cure the error is to expressly withdraw "the erroneous instruction and substitute therefor the correct instruction. 50 If the erroneous instruction is not withdrawn, it Will be presumed that the jury followed the erroneous instruction, and that injury resulted, unless it affirmatively appears that St. 391; Murray v. Com., 79 Pa. St. 311. Texas. Bruce v. Koch, 94 Tex. 192; Mershon v. Bosley (Tex. Civ. App.) 62 S. W. 799. Washington. Miller v. Vermurie, 7 Wash. 386, 34 Pae. 108. Wisconsin. Imhoff v. Chicago & M. By. Co., 20 Wis. 344. * Whatever is vicious or vaguely worded is not cured by other in- structions except in very plain cases, — ones entirely free from doubt. Quirk v. St. Louis United Elevator Co., 126 Mo. '279. 54 — Adams v. Macfarlane, 65 Me.. 143. 55 — Bloomington' & N. By. Co. v. Gabbert, 111 111. App. 147. 56 — Indiana. Plummer v. State, 135 Ind. 308; McCrory v. Anderson, 103 Ind. 12; Uhl v. Bingaman, .78 Ind. 365; Guetig v. State, 63 Ind. 278; Howard v. State, 50 Ind. 190; Bradley v. State, 31 Ind. 492; Torr v. Torr, 20 Ind. 118; Terre Haute & I. B. Co. v. Pruitt, 25 Ind. App. 227. Kentucky. Clay's Heirs v. Mil- ler, 3 T. B. Mon. 149. Louisiana. State v. Jones, 36 La. Ann. 204. Missouri. Glascock v. Chicago & A. E. Co., 69 Mo. 589. Nebraska. Swift & Co. v. Holou- bek, 60 Neb. 784. New York. Chapman v. Erie Ry. Co., 55 N. Y. 579; Meyer v. Clark, 45 N. Y. 285, rev'g 2 Daly 497; Wil- lard v. Press Pub. Co., 52 App. Div. 448. Pennsylvania. ' Sommer v. Gil- more, 168 Pa. St. 117. Texas. Missouri, K. & T. By. Co. of Texas v. Eodgers, 89 Tex. 675. West Virginia. McKelvey v. Ches- apeake & O. By; Co., 35 W. Va. 500. Wisconsin. Eggett v. Allen, 106 Wis. 633; Imhoff v. Chicago & M. By. Co., 20 Wis. 344. See also, State v. Harkin, 7 Nev. 377. An error in the charge is not cured by a retraction of it on exception taken, accompanied by the remark of the judge that he had no doubt of its correctness. Meyer v. Clark, 45 N. Y. 285, rev'g 2 Daly 497. It is error in a criminal case for the court to place before the jury the probable result of a verdict of guilty, and this, though the mistake be ex- plicitly rectified. Com. v. Switzer, 134 Pa. St. 383, 26 Wkly. Notes Cas. 46. 484 Instructions to Jukies. [§197 no injury resulted. 57 It is always competent for the judge to withdraw an improper instruction and substitute therefor a correct instruction, and, if this is done, the error is cured. 58 The express retraction of improper remarks cures the error unless it appears affirmatively that the retraction was not accepted by the jury. 59 "If an instruction contains a complete statement of a proposition of law applicable to the facts in a given case, it will be held good as a part of a series containing the entire law of the case." 60 But so far as an instruction undertakes to state a proposition of law, it must do so completely and correctly. 61 Thus, an instruction which attempts to cover 57 — Grand Rapids & I. R. Co. v. Monroe, 47 Mich. 152; State v. Fer- guson, 9 Nev. 106. But a verdict rendered according to the correct instruction will be sustained. Avery v. New York Cent. & H. Eiver R. Co., 26 N. Y. St. 279. 58 — Georgia. Central of Georgia R. Co. v. Ray, 133 Ga. 126. Indiana. Fuelling v. Fuesse, 43 Ind. App. 441. Kansas. State v. Wells, 54 Kan. 161, 37 Pac. 1005. Maine. Bradstreet v. Rich, 74 Me. 303. Michigan. Kelly v. Hendrie, 26 Mich. 255. New York. Desmond-Dunne Co. v. Friedman-Doscher Co., 162 N. Y. 486; City Trust, Safe-Deposit & Surety Co. v. Fidelity & Casualty Co., 58 App. Div. 18; McMahon v. New York News Pub. Co., 51 App. Div. 488; Pollock v. Brooklyn & C. T. R. Co., 60 Hun 584 mem., 15 N. Y. Supp. 189; Zent v. Watts, fN. Y. Supp. 702. North Carolina. State v. May, 15 N. C. 328. Pennsylvania. Sargeant v. Mar- tin, 133 Pa. St. 122. South Carolina. Sharp v. Kins- man, 18 S. C. 113. Tennessee. Green v. State, 97 Ttenn. 50. Texas. Yoakum v. Mettasch (Tex. Civ. App.) 26 S. W. 129. . Where, upon failure of the jury to agree, the speeial f instructions given them are recalled, and, being charged to find for the defendant, they return a verdict accordingly, the special instructions are super- seded, and will not be reviewed on error. As the verdict was not found on them they do not prejudice the plaintiff. Kelly v. Hendrie, 26 Mich. 255. 59— Reinhold v. State, 130 Ind. 467; Brooks v. Rochester Ry. Co., 10 Misc. (N. Y.) 88; State v. McNair, 93 N. C. 628. • 60— Yundt v. Hartrunft, 41 111. 9; Walker v. Collier, 37 111. 362; Taylor v. Wootan, 1 Ind. App. 188, 5 Am. St. Rep. 200. 61— Forsyth v. Bower, 54 Cal. 639; Ohio, I. & Vf. Ry. Co. v. Kleinsmith, 38 111. App. 45; Sweet v. Leach, 6 § 197] Construction and Interpretation. 485 the whole case, and authorizes a finding for one party or the other, according as the jury may determine certain facts, is erroneous if it omits any material issue, and such error is not cured by another instruction, properly submitting the omitted issue. 6 ? An instruction directing a verdict must be considered by itself, 83 and such an instruction cannot be aided Or cured by other instructions. 64 Under the rule that a party is not entitled to have even a correct request given in the precise language of the re- quest, 65 the refusal of an instruction cannot be complained of if the subject of the request is fully covered by the court in its main charge, 66 and it is immaterial at whose instance 111. App. 212; Gale v. Rector, 5 111. App. 481; Ottawa, O. & F. River Val. R. Co. v. McMath, 4 111. App. 356. But seej Schroeder v. Michel, 98 Mo. 43. 62 — Arizona. Territory v. Hail- cock, 4 Ariz. 154, 35 Pac. 1060. Georgia. Georgia & A. R. Co. v. Rawson, 112 Ga. 471. Illinois. McNulta v. Jenkins, 91 111. App. 309; Grieb v. Caraker, 57 111. App. 678. Missouri. Desnoyers Shoe Co. v. Lisman, 85 Mo. App. 340; State v. Davies, 80 Mo. App. 239; Hohstadt v. Daggs, 50 Mo. App. 240. Nebraska. Dobson v. State, 61 Neb. 584; Burlingim v. Baders, 45 Neb. 673. Virginia., Norfolk & W. R. Co. v. Mann, 99 Va. 180. West Virginia. McVey v. St. Clair Co., 49 W. Va. 412! ,63— City of Chicago v. Sutton, 136 111. App. 221. 64— Wallace v. Strickler, 95 Ark. 108; Cromer v. Borders Coal Co., 246 111. 451; Jarnecki v. Chicago Consol. Traction Co., 175 111. App. 424; Con- nor v. American Spirits Mfg. Co., 175 111. App. 159; Driza v. Jones & Adams Coal Co., 171 111. App. 139; St. John v. Illinois Cent. R. Co., 168 111. App. 599; Prante v. Hartman, 168 111. App. 393; Lifschitz v. City of Chicago, 150 111. App. 201. Error in instruction directing a verdict is not cured by other in- structions. Krieger v. Aurora, E. & C. R. Co., 242 111. 544, rev'g 148 111. App. 613. 65— See § 189, ante, "Duty to fol- low language of request." 66 — California. Manning v. Dal- las, 73. Cal. 420, 15 Pac. 34; Davis v. Perley, 30 Cal. 630. Colorado. Marsh v. Cramer, 16 Colo. 331, 27 Pac. 169. Georgia. Roekmore v. State, 93 Ga. 123. Illinois. State v. Wilson, 3 111. (2 Scam.) 225. Indiana. . Hipes v. State, 73 Ind. .39. Iowa. State v. La Grange, 94 Iowa 60. Massachusetts.^ Saunders v. Whit- comb, 177 Mass. 457. Michigan. Brown v. McCord & Bradfield Furniture Co., 65 Mich. 486 Instructions to Juries. [§ 197 the subsequent instruction was given. 67 Of course, the in- struction given must be the substantial equivalent of the instruction refused. 08 Failure to charge upon a particular subject is cured by subsequently giving an instruction fully covering the ground. 69 In general, a correct abstract in- struction will not cure the error in failing to, give a concrete instruction on the same subject, applying the law to the facts of the case, 70 but where a part of a main charge is inconsistent with a request of a party granted at the close of the main charge, the requested instruction must control. 71 § 198. Same — Illustrations. It has been frequently ruled that a defense like contribu- tory negligence or assumption of risk may properly be left to a separate instruction, and an instruction omitting any reference to such defense is not erroneous, 72 and the fact that some instructions fail to distinguish between the de- fense of contributory negligence and assumed risk is not prejudicial error where other instructions correctly define contributory negligence. 73 - An instruction requiring a defendant to "establish" its, plea of contributory negligence has been held not mislead- 360; Grand Rapids & I. E. Co. v. Wells v. Houston, 26 Tex. Civ. App. Cameron, 45 Mich. 451. 629; Lane v. State, 41 Tex. Or. App. New York. People v. Fanshawe, 558. 65 Hun 77; Parker v. Stafford, 61 70— Gorstz v. Pinske, 82 Minn. Hun 623, 16 N. Y. 756. 456, 83 Am. St. Eep. 441. Washington. State v. Murphy, 13 71 — Goetz v. Metropolitan St. By. Wash. 229, 43 Pac. 44. Co., 54 App. Div. (N. Y.) 365. But see, People v. Bamirez, 13 Cal. 72 — Johnson v. Springfield Trac- 173. tion Co., 176 Mo. App. 174. 67 — Herhold v. City of Chicago, It cannot be contended on appeal, 108 111. 467. that an instruction as to contribu- 68 — Davis v. Moore, 22 Ky. L. tory negligence was indefinite and Bep. 261. misleading where that issue was 69 — Postal Tel. Cable Co. v. Doug- fully covered by other instructions, lass, 96 Ga. 816; Camden & R. Water St. John v. Cascade Lumber & Shin- Co. v. Ingraham, 85 Me. 179; Lowri- gle Co., 53 Wash. 193, 101 Pac. 833. more v. Palmer Mfg. Co., 60 S. C. 73— Miller v. Foundation Co., 93 153; State v. Lee, 58 S. C. 335; Kan. 38, 143 Pac. 493. § 198] Construction and Interpretation. 487 ing when the charge as a whole was considered, 74 and an instruction omitting the essential element of assumed risk may be cured by subsequent instructions. 73 Where an instruction ,as a whole states the true rule as to the liability of a city to a traveler on its streets, the fact that one phrase states that it was the city's duty to keep a walk in a reasonably safe condition does not render the in- struction erroneous. 76 In an action for injuries to a servant 1 in a sawmill, the giv- ing of inaccurate or incomplete instructions that it was the defendant's duty to furnish safe appliances was not preju- dicial when in the other charges statements as to the em- ployer's duty were qualified with the words "by the exer- cise of ordinary care. ' ' 77 The error in giving instructions amounting to a complete statement and almost a quotation of the employers' lia- bility law, which state the law correctly in the abstract, but which might be misleading as applied to a case on trial, is obviated where it appears that the instructions as a whole correctly state the law. 78 An erroneous instruction as to liability for assault, in an action where a passenger was assaulted by another pas- senger, has been held not prejudicial when the instructions were considered as a whole. 79 Where a sentence as a whole states the rule for measuring damages for injury to personal property, an exception to a part of the sentence cannot be sustained. 80 The omission of the word ' ' express ' ' before ' ' malice ' ' in an instruction denning murder is not error warranting re : 74 — Houston & T. C. E. Co. v. 78— Schaller v. Pacific Face Brick Johnson, 103 Tex. 320. Co., 70 Ore. 557, 139 Pac. 913. 75 — Montgomery Coal Co. v. Bar- 79 — Kelly v. Navy Yard Route, 77 ringer, 109 111. App. 185, rev'd 218 Wash. 148, 137 Pac. 444. 111. 327. 80— Ballanger v. Shumate, 10 Ala. 76 — Finnane v. City of Perry, 164 App. 329. Iowa 171, 5 N. C. C. A. 463. 77 — Pine Mountain Mfg. Co. v. Bishop, 160 Ky. 575. 488 Instkuctions to Jtjkies. [§ 198 versal when the definition, as a whole presents fully what it takes to constitute murder, 81 and an oral charge as to pleas of not guilty and insanity has been held not objectionable when considered as a whole. 82 § 199. Particular words and phrases. The construction of particular words and phrases has already been referred to in the chapters dealing with the general requisites of instructions, 83 and it has also been noted that instructions will be construed according to their essential meaning, and that mere verbal inaccuracies are not sufficient error to warrant reversal unless the charge is rendered misleading. 84 As to other illustrations of the construction of particular words or phrases, it may be noted that the phrase, "the evidence," has been construed to mean ' ' all the evidence " ; 85 that ' ' and thereby ' ' is synony- mous with "in cons'equence thereof"; 86 and that the word "his," referring to men and women, is used in a generic sense. 87 In an action for personal injury, the use of the word "accident" in an instruction is not erroneous where from the reading of the entire instruction it is apparent that such word was used to designate the occurrence or happening in question, and it must have been so understood by the jury. 8s ' 81— Johnson v. State, 63 Tex. Cr. 87— V i 1 1 a g e of Wilmette v. App. 50. Brachle, 110 111. App. 356, aff'd 209 82 — Harris v. State, 8 Ala. App. HI. 621. 33. 88 — Kaminski v. Chicago City Ey. 83— See chs. Ill, IV, V, ante. Co., 181 111. App. 706. 84 — See eh. V, § 32, ante. Use of word "accident" to desig- 85 — Adams v. Pease, 113 111. App. nate a collision with a street car, 356. held not improper. Kaminski v. Chi- 86— Pope v. Chicago City Ey. Co., cago City Ey. Co., 181 111. App. 706. 113 111. App. 503. CHAPTER XVII. Signing and Numbeeing Instructions. § 200. Signing by court. § 201. Signing by party or counsel. § 202. Numbering instructions. § 200. Signing by court. Instructions need not be signed by the trial judge unless statutory provisions exist requiring such signing, 1 and it has been held that where a statute does not in terms require the instructions to be signed, and does not require the paper containing the instructions to be given to the jury, but merely requires the charge to be in writing and to be filed among the papers in the case, the failure of the judge to sign the instruction is not error, especially where no one requests the written instructions to be given to the jury. 2 In some states, statutes exist requiring the judge to sign the instructions given, and a noncompliance with the statute has been held to be reversible error, regardless of whether the party appealing was harmed thereby or not. 3 , But in other states, the judgment will not be reversed for this cause alone, unless it may have resulted in prejudice to the ap- pellant, 4 except in Texas, where, in cases of felony, a stricter rule is applied, and a failure to sign the instructions is 1 — Hunter v. Parsons, 22 Mich. 96. Co: y. Black, 173 Ind. 142; Holcomb 2 — State v. Davis, 48 Kan. 1, 28 v. Norman, 43 Ind. App. 506. Pac. 1092. 4 — State v. Stanley, 48 Iowa 221 3 — Tyree v. Parham's Ex'r, 66 State v. McCombs, 13 Iowa 426 Ala. 424; Baker v. State, 17 Fla. Parker v. Chancellor, 78 Tex. 524 410; Fridenberg v. Robinson, 14 Fla. Dillingham v. Bryant (Tex. App.) 130. See also/ Muncie & P. Traction 14 S. W. 1017. And see, Eockwell 490 Instructions to Jueies. [§ 200 reversible error, regardless of actual prejudice. 5 It has been held a sufficient signing of an instruction to write at the foot of it, "Refused, as it charges on the evidence. E. K. Foster, Judge of the Seventh Judicial Circuit. To which ruling of the court the defendant then and there excepted. E. K. Foster, Judge Seventh Judicial Circuit. [L. S.] " 6 While it has been held that the failure of the judge to sign a charge is not reversible if the charge is filed at the time of the trial, and thereby made a record in the case, so that its identity is placed beyond doubt, 7 it has also been held that the omission to sign instructions, as required by statute, cannot be remedied by a nunc pro tunc entry, the function of such entry being to make a record of something that was done and not recorded. 8 § 201. Signing by party or counsel. It has already been noted that in some jurisdictions re- quests for instructions must be signed by the party request- ing them, or by his counsel, and requests not so signed may be properly refused. 9 This rule usually exists by virtue of statutory provisions and under such a statute it is not error to permit the instructions to go to the jury signed by counsel. 10 It is usually held that error cannot be assigned to the giving of an instruction which is not signed by counsel, unless an exception is saved, 11 and it has been held not Bros. & Co. v. Hudgens, 57 Tex. § 561. Bottorff v. Bottorff, 45 Ind. Civ. App. 504. App. 692. 5 — Hubbard v. State, 2 Tex. App. 9 — See § 180, ante, ' ' Signing by 506; Smith v. State, 1 Tex. App. party or counsel." And see, Louis- 416; Longino v. Ward, 1 White & W. ville & S. I. Traction Co. v. Korbe, Civ. Cas. Ct. App. § 522. — Ind. App. — , 90 N. E. 483; Indian- 6 — Carter v. State, 22 Fla. '553. apolis Traction & Terminal Co. v. As to sufficiency of signing, see also, Rowe, 43 Ind. App. 407. Vandalia Coal Co. v. Yemm, 175 Ind. 10 — Schmidt v. First Nat. Bank 524. of Denver, 10 Colo. App. 261, 50 Pac. 7— Parker v. Chancellor, 78 Tex. 733. 528. ' 11— Little v. State, 58 Ala. 265. 8— Under Burns' Ann. St. 1914, § 202] Signing and Numbeeing Instbuctions. 491 reversible error to give a requested charge, not signed by- counsel, where the judge marks it "Given" and officially signs it. 12 § 202. Numbering instructions. Statutory provisions requiring requests for instructions and instructions given by the court, to be numbered, exist^ in a few states, the object of the requirement being' to pro- mote the convenience of the court and parties in saving exceptions to the instructions. 13 Under such statutes it has been held that where the instructions are correct and proper, the failure to number them may be harmless error, 14 and the error is waived by a failure to make and save a timely objection and exception, 15 but ordinarily a failure to number requests as required is sufficient ground for refusing them, though otherwise they are correct. 16 As reiteration is a fault to be avoided, it is highly proper that modifica- tions of numbered instructions should be given by instruc- tions of a different number. 17 12 — Monier v. Philadelphia Rapid Where instructions are reduced to Transit Co., 227 Pa. 273; Galveston, writing and clearly and concisely H. & S. A. Ry. Co. v. Neel (Tex. Civ. state the law, the mere failure to App.) 26 S. W. 788. number them does not constitute re- 13 — Moffatt v. Tenney, 17 Colo. versible error. Atchison, T. & S. P. 189, 30 Pac. 348; Kansas Pac. Ey. Co. R. Co: v. Calhoun, 18 Okla. 75, 11 v. Ward, 4 Colo. 36; Supreme Tent Ann. Cas. 681, 89 Pac. 207. / Knights of Maccabees of World v. 15 — See ch. XXXIV, -post, "Ap- .Ethridge, 43 Ind. App. 475; Indian- pellate Review of Instructions." apolis Traction & Terminal Co. v. 16 — Coryell v. Stone, 62 Ind. 308. Rowe, 43 Ind. App. 407. 17— Columbia & P. S. R. Co. v. 14 — Miller v. Preston, 4 N. M. Hawthorn (Wash.), 19 Pac. 25. (Johns.) 314,. 17 Pac. 565; 4 N. M. (Gild.) 396, 17 Pac. 565. CHAPTER XVIII. Presentation of Instructions to and Consideeation by Jtjby. § 203. Matters elsewhere considered. § 204. Reading instructions to jury. § 205. Manner and emphasis of judge in giving instructions. § 206. Stating reasons for giving or refusing instructions. § 207. Giving undue importance to instructions by words or actions. § 208. Unduly emphasizing proposition of law by repetition. § 209. Diminishing or weakening effect of instructions by words or actions. § 210. Reading from statutes. § 211. Eeading from text-books. § 212. Reading from reported decisions. § 213. Time of delivering instructions. § 214. Consideration of instructions by jury. §203. Matters elsewhere considered. The necessity of instructing in writing, 1 and of signing and numbering instructions, 2 as well as the necessity of marking instructions "Given" or "Refused," and the dis- position of requests for instructions generally, 3 have already been considered in other chapters of this work. A few other considerations as to the presentation of the instructions to, and their consideration by, the jury may be conveniently considered in this chapter. § 204. Reading instructions to jury. It is the common practice in giving special written charges to read them to the jury, 4 and under statutory provisions it has been held that the judge should read the charge to the jury in the precise words in which it is written, both in 1— See ch. VI, ante. 3— See ch. XV, § 181, ante. 2— See ch. XV, § 182, ante. 4— Boyd v. State, 154 Ala. 9. ( 492 ) § 204] Presentation to Juey. 493 civil and criminal, cases, 5 but ordinarily the omission to read the instructions merely affects the method pursued, and cannot be complained of where no request to read was made until the jury retired, and where the written charges were handed to the jury. 6 The judge is the proper person to read the charge and the practice of marking such instructions as should be given and directing the counsel to read them to the jury should not be resorted to. 7 It is apparent that the statement of law which the trial judge gives to the jury for their guidance should proceed directly from him. In that way and only in that way can there be any assurance that every principle of law given receives due emphasis. 8 However, it has been held that the practice of permitting the counsel to read the charge is not reversible error where it is consented to by the attorneys in the case. 9 It has already been noted that requested instructions given are usually considered as the instructions of the court and not of the parties, and accordingly the order in which the instructions are given is immaterial, 10 but in some states statutory provisions exist governing the order in which instructions are to be read. 11 5 — Coley v. State, — Tex. Cr. App. preface an instruction with the re- — , 150 8. W. 789. mark, ' ' As requested by the def end- Statute (Rev. St. 1911, arts. 1970, ant I instruct. ' ' State v. Poyner, 57 1971) held mandatory. International Wash. 489, 107 Pac. 181. & G. N. Ry. Co. v. Parke, — Tex. 11— Under Acts W. Va., ch. 38, p. Civ. App. — , 169 S. W. 397. 223, instructions given by the court 6 — Boyd v. State, 154 Ala. 9. on its own motion are to be read 7—0 'Dell v. Goff, 153 Mich. 643. first, then those of the plaintiff and 8—0 'Dell v. Goff, 153 Mich. 643. lastly those of the defendant. Prior 9 — O'Deli v. Goff, 153 Mich. 643. to such act it was not error to read 10 — See also, § 189, ante. And see, the defendant 's instructions first. People v. Holt, 22 Cal. App. 697, 136 Truex v. South Penn Oil Co., 62 W. Pac. 501. Va. 540. See also, State v. Poyner, 57 Wash. See also, S. D. Comp. L. 1913, vol. 489, 107 Pac. 181. 2, p. 366, § 257. Under this rule it is not error to 494 Instructions to Jusies. [§ 205 § 205. Manner and emphasis of judge in giving instruc- tions. While it has been held that a judge should not intimate, by the earnestness of his charge, his own opinion as to the facts, 12 it is also apparent that no objection to the manner or tone of voice of the trial judge in delivering instructions can be sustained on appeal. The weight of authority is to this effect, 13 as there is no way by which the manner or tone can be preserved and presented to the court on appeal for review. 14 In one case it was said: "We cannot concern ourselves with the manner of the court in instructing the jury, only so far as we can measure it by the language em- ployed. He may have peculiar methods of emphasis, which may, before a jury, have a prejudicial effect; but this we cannot reach. " 15 In another case it was held that courts are "powerless to afford relief for grievances of that kind, by the ordinary method of assignments of error. ' ' 16 Where the court charged that counsel had admitted ' ' as from the evidence they were forced to admit," and it was contended that the observation was made in a manner to throw discredit upon the whole defense, the reviewing court said that they could not perceive from the record that any injury had been done, implying that, if the reviewing court could see that harm had been done, the judgment would have been reversed. This decision, perhaps, is not at vari- ance with the other authorities cited. 17 i 12— State v. Howell, 28 S. C. 250. paper Co., 168 Mass. 327; Beal v. See also, Wheeler v. Wallace, 53 Lowell & D. St. Ry. Co., 157 Mass. Mich. 357. 444; Maloney v. Koberts, 32 Tex. 13— Rountree v. Gurr, 68 Ga. 292; 136. Anderson v. Tribble, 66 Ga. 588; 14 — Rountree v. Gurr, 68 Ga. 292; Gibbs v. Johnson, 63 Mich. 671; Mer- Gibbs v. Johnson, 63 Mich. 671. chants' Bank of Canada v. Ortmann, 15 — Gibbs v. Johnson, 63 Mich. 48 Mich. 419; Horton v. Chevington 674. & B. Coal Co., 2 Penny. (Pa.) 49; 16— Horton v. Chevington & B. Page v. Town of Sumpter, '53 Wis. Coal Co., 2 Penny. (Pa.) 1, 50. 656. 17— Ernull v. Whitford, 48 N. C. See also, Bishop v. Journal News- 474. § 207] Presentation to Jury. 495 It has also been said that if the manner and emphasis with which a charge is delivered to the jury can be assigned as error at all, it must first be made the ground of a motion for a new trial, supported by affidavits. 18 § 206. Stating reasons for giving or refusing instructions. The duty of the court to refrain from misleading remarks in passing upon requested instructions has already been considered. 19 It may be added that if the action of the court in giving or refusing instructions is correct, it is immaterial whether the reasons advanced by the court for such action were cor- rect or not, 20 unless it appears that such statement operated to mislead the jury, or to affect the verdict to the prejudice of the complaining party. 21 § 207. Giving undue importance to instructions by words or actions. Instructions should not give undue prominence to the evidence, 22 and remarks or actions which tend to cause the jury to attach undue importance to any particular instruc- tion or to a part of an- instruction are also considered im- proper. 221 Accordingly the practice of underscoring words in the instructions is very generally condemned, as it has a tendency to give undue weight and force to the words and sentences underscored, thereby preventing the jury from 18 — Murphy v. Whitlow, 1 Ariz. North Carolina. Posey v. Pattoc, 340, 25 Pac. 532. . , 109 N. C. 455. 19 — See § 181, ante. Pennsylvania. Eupp v. Orr, 31 Pa. 20 — Kentucky. Dale v. Arnold, 2 St. 517. Bibb 606. Virginia. Easley v. Craddock, 4 Maryland. Budd v. Brooke, 3 Gill. Band. 423. 198, 43 Am. Dec. 321n. 21— Carpenter v. Pierce, 13 N. H. Nebraska. Marion v. State, 20 403. Neb. 233, 57 Am. Rep. 825. 22 — See ch. XIV, ante. New Hampshire. Blodgett v. Ber- 22a-^Monier v. Philadelphia Rapid lin Mills Co., 52 N. H. 215. Transit Co., 227 Pa. 273. 496 .Instructions to Juries. [§ 207 giving proper weight and consideration to other portions of the charge. 23 Instructions containing words which are underscored may properly be refused ; 24 but the giving of such an instruction is not a ground for reversal, unless prejudicial to the party complaining. 25 It has been held, however, that an instruc- tion in which the words underscored are usually italicized in legal treatises and judicial opinions does not fall within this rule. 26 An instruction that it is the duty of the jury to carefully consider the written charges given on request, and that they should apply the law as laid down- in the written charge, as well as that in the oral charge, is properly refused, as tending to exaggerate the importance of the written charge. However, it has been held within the discretion of the court to give such an instruction. 27 A prosecuting attorney has a right to request instruc- tions. Instructions given on such request are to be given the same consideration as instructions given by the court on its own motion. 28 There is some conflict of authority as to the propriety of making marginal citations of reports or text-books, on in- structions taken out by the jury. One court sees nothing improper in this practice, 29 but others have disapproved it. They hold, however, that, in the absence of special circum- stances, the error is without prejudice, and that a judgment should not be reversed for such a reason unless prejudice be made to appear affirmatively. 30 23— Wright v. Brosseau, 73 111. 25— Wright v. Brosseau, 73 111. 381. 381; McCormick Harvesting Mach. 26 — Philpot v. Lucas, 101 Iowa Co. v. Sendzikowski, 72 111. App. 402 ; 478. In this case it appears that the Heyer v. Salsbury, 7 111. App. 93; words "prima facie" were under- State v. Cater, 100 Iowa 501. scored in an instruction. 24 — McCormick Harvesting Mach. 27 — Martin v. State, 104 Ala. 71. Co. v. Sendzikowski, 72 111. App. 402. 28— Dixon v. State, 46 Neb. 298. The instructions condemned in this 29 — Wright v. BroBseau, 73 111. 381. case were printed, — some of the 30 — Williams v. St. Louis & S. F. words being in large type, and the Ry. Co., 123 Mo. 573; Herzog v. others in type half as large. Campbell, 47 Neb. 370; Sioux City & § 209] Pkesentation to Jury. 497 § 208. Unduly emphasizing proposition of law by repeti- tion. While the repetition of instructions may tend to cause confusion and mislead the jury, 31 it is ordinarily held that the mere repetition of a correct proposition of law several times in the instructions is not error, for the jury cannot be too strongly impressed with the correct rule of law appli- cable to the case. 32 In one case where the trial court re- peated seven times to the jury the proposition that evidence to "impeach a written instrument on the ground of fraud, accident, or mistake must be clear, precise and indubitable, ' ' the reviewing court said that, as it was good law, "seventy times seven would not have, been too often." 33 Other de- cisions are not wholly in accord with the ones just cited. In one there is a dictum to the effect that " it is undoubtedly improper for a court to place, by frequent repetitions, too prominently before a jury any principle of law involved in the case." 34 In another it was said : "Especially is it im- portant that this rule be observed in criminal cases, in order to guard against creating an impression upon the minds of the jury as to what may be the opinion of the court with regard to the facts to which the principle applies." Whether the court would have reversed for this error can- not be determined, as there were other errors in the record sufficient to reverse. 35 § 209. Diminishing or weakening effect of instructions by words or actions. It is improper for the court in giving an instruction to P. B. Co. v. Finlayson, 16 Neb. 578, 33 — Murray v. New York, L. & W. 49 Am. Eep. 724n. E. Co., 103 Pa. St. 37. 31— See ch. IV, § 17, ante. 34— Traylor v. Townsend, 61 Tex. 32 — Coffman v. Eeeves, 62 Ind. 147. And see, Jacksonville Elee. Co. 334; Gran v. Houston, 45 Neb. 813; v. Hellenthal, 56 Fla. 443; Beatty v. Murray v. New York, L. & W. E. Co., Metropolitan West Side El. E. Co., 103 Pa. St. 37. See also, Jackson- 141 111. App. 92; Jones v. Monson, ville Elec. Co. v. Hellenthal, 56 Fla. 137 Wis. 478, 129 Am. St. Eep. 1082. 443; McMahon v. Chicago City Ey. 35 — Irvine v. State, 20 Tex. App. Co., 143 111. App. 608. 12. Blashfield Vol. 1—32 498 Instructions to Jukies. [§ 209 do anything by word or action which will have a tendency to cause the jury not to give such instruction the consid- eration and credit to which it is entitled. 86 In submitting special questions by request it has been held error to state: "I want the jury to understand that these questions are got up to. befuddle and mislead the jury, so that there will be error in the trial of this case, so that the verdict may be set aside, ' ' 3T and, where the court gave a requested instruction, and accompanied it with the follow- ing remark, "Yes, if the defendant's papers are all right, and the plaintiff's all wrong, then this is so, and I so charge the jury, ' ' it was held prejudicial error. 38 It is also improper for the court to criticise the justice of the law as laid down in the instructions, 39 and in giving requested instructions it is said to be better practice not to state at whose request they were given, but to give all proper instructions as emanating from the court itself, 40 although these errors, if such they may be termed, will not be sufficient ground for reversal if no injury is shown. 41 Where the court lays down the law applicable to a set of facts, and then states that the rule of law is given with some hesitation because of the doubt the court has as to the 36 — Georgia. Head v. Bridges, 67 40 — Terre Haute Traction & Light Ga. 227. ' Co. v. Payne, 45 Ind. App. 132; Ste- Illinois. Watson v. Union Iron & venson v. Chicago & N. W. By. Co., Steel Co., 15 111. App. 509. 94 Iowa 719. See also, State v. Pitts, Iowa. Greenway v. Taylor County, 11 Iowa 343, and Maxwell v. Town 144 Iowa 332. of Wellington, 138 Wis. 607. Michigan. Stebbins v. Keene Tp., It is better not to state at whose 55 Mich. 552. request instructions were reduced to Minnesota. Horton v. Williams, 21 writing. Wilson v. White, 71 Ga. Minn. 187. , 506, 51 Am. Bep. 269; Head v. New York. Sieling v. Clark, 18 Bridges, 67 Ga. 235. Misc. 464. See also, §§ 181, et seq., ante. 37 — Cone v. Citizens' Bank, 4 Kan. 41— Wilson v. White, 71 Ga. 506, App. 470, 46 Pac. 414. 51 Am..Eep. 269; Stevenson v. Chi- 38 — Horton v. Williams, 21 Minn. cago & N. W. Ey. Co., 94 Iowa 719; 187. Maxwell v. Town of Wellington, 138 39— Stebbins v. Keene Tp., 55 Wis. 607. Mich. 552. § 210] Pbesentation to Jury. 499 effect of an additional fact not enumerated in the hypothe- sis, but again reiterates the rule of law, there is no error. 42 It has likewise been held that, when requested instruc- tions are already covered by the general charge, "the court may properly say to the jury that such requests are the law, but no more so than when given in the general charge, ' ' and that error cannot be predicated of this remark, "espe- cially when the same remark was made in respect to like requests made by the defendant. ' ' 43 In one case it was held not improper for the judge to inform the jury that he charged them on the prisoner's statement because the law compelled him to do so. 44 § 210. Reading from statutes. "As a general rule it is excellent practice to follow the statute in framing instructions, taking care that the lan- guage is adapted to the needs of the given case." 45 The trial judge may read or copy into its charge, as a part thereof, such sections of the statutes as apply to the facts, 46 and it has even been held that the reading of a part of a statute which is not relevant is not reversible error unless it appears that soine substantial right of the party com- plaining has been affected. 47 42— Evans v. Foss, 49 N. H. 490. Maine. State v. Stickney, 111 Me. 43— Roberts v. Neal, 62 Ga. 163. 590. 44 — McCord v. State, 83 6a. 521. Michigan. Johnson v. Sehultz, 74 45 — Michalsky v. Centennial Brew- Mich. 75. ing Co., 48 Mont. 1, 134 Pae. 307. Montana. Territory v. Mahaffey, 46 — California. People v. Hender- 3 Mont. 116. son, 28 Cal. 465; People v. Galvin, 9 Pennsylvania. Com. v. Harris, 168 Cal. 115. Pa. St. 619. Colorado. Keefer v. Amieone, 45 Texas. Simons v. State (Tex. Cr. Colo. 110. App.), 34 S. W. 619. Florida. Florida K. Co. v. Dorsey, Virginia. Miller v. Com. (Va.), 59 Fla. 260. 21 S. E. 499. Illinois. Wells v. Baltimore & O. 47 — People v. Burns, 63 Cal. 614; S. W. B. Co., 153 111. App. 23. But see, Haywood v. Dering Coal Co., 145 111. App. 506. 500 Instructions to Jueies. [§ 210 When it becomes proper to refer to a statute, the pro- visions thereof should be stated and the jury informed what bearing the same has upon the ease. 48 In criminal cases, it is not error to read a section of the criminal code under which a defendant is prosecuted. 49 This principle is well illustrated in the following case: On a prosecution ' ' for robbery, an instruction was given, in the language of the statute, denning the offense, and pre- scribing the punishment. It further gave the jury, in the language of the statute, the more severe punishment if the defendant was armed with a dangerous weapon, with intent, if resisted, to kill or maim, or, being so armed, should wound or strike the person robbed, or if he had any confederate present, so armed, to aid or abet him. There was evidence that one 1 of the parties robbing struck the person robbed with a pistol. The jury found the defendant guilty, and fixed his punishment at the lowest term they could, without regard to the use of any dangerous weapon. ' ' The objection was made that the instruction was not applicable to the facts, but the court held that there was no error prejudicial to the defendant. 50 It has been said that an instruction is not necessarily correct because it uses the words of a statute, if the use of those words, without explanation, has a tendency to mis- lead ; 61 but if a construction of the language used is desired, a request therefor must be made. 55 § 211. Reading from text books. It is not error to refuse to embody the language of a text writer in a charge to the jury, as the court is vested with the discretion of using language of its own choosing. 53 This is especially true where the requested instruction merely 48 — International & G. N. Ry. Co. 51 — State v. Laurie, 1 Mo. App. v. Bandy, — Tex. Civ. App. — , 163 371. S. W. 341. 52— Town of Fox v. Town of Ken- 49— Frazer v. State, 159 Ala. 1. dall, 97 111. 72. 50 — Needham v. People, 98 111. 275. 53 — People v. Wayman, 128 N. Y. § 212] Presentation to Jury. 501 contains philosophical remarks copied from text-books, and it makes no difference how wise or true they may be in the abstract, or how high the reputation of the author. 54 But, it is also held that the court may read an extract from a text- book as a part of its charge and that this is not an improper method of expounding the law of a case. 55 § 212. Reading from reported decisions. The practice of stating the governing principles of law to a jury in the exact language of a decided case is well es- tablished in some states, 56 and it is accordingly proper for the court to read or embody in the written charge such extracts from reported cases as are correct and applicable. 57 In one case, however, the practice of reading opinions in other cases as a part of the charge of the court in a criminal case was advised against as dangerous. 58 But it has also been held not error to read a case from the reports as an illustration. 59 Statements in an opinion on a former appeal are not nec- essarily proper as instructions. 60 In such case the evidence given in the pending cause must be substantially the same as that given on the former trial to make it proper to quote 585. See generally, §§189 et seq., 131 N. Y. 563; Anderson v. McAlee- ante. nan, 15 Daly 444; Panama K. Co. v. 54— Walker v. Johnson, 96 U. S. Johnson, 63 Hun 629; Cordell v. New (6 Otto) 424, 24 L. Ed. 834. York Cent. & H. R. R. Co., 6 Hun 55 — Bronnenburg v. Charman, 80 461. • Ind. 475; People v. Niles, 44 Mich. Pennsylvania. Henry v. Klopfer, 606. 147 Pa. St. 178; Hood v. Hood, 25 56— Com. v. Dow, 217 Mass. 473. Pa. St. 417. 57 — California. In re Spencer, 96 Wisconsin. See Anderson v. Hor- Cal. 448, 31 Pac. 453. lick's Malted Milk Co., 137 Wis. District of Columbia. Johnson v. 569. Baltimore & P. R. Co., 6 Mackey 232. 58— People v. McNabb, 79 Cal. Illinois. Kirby v. Wilson, 98 111. 419, 21 Pac. 843. 240. 59-^tate v. Chiles, 58 S. C. 47. Michigan. Power v. Harlow, 57 60 — Centralia & C. R. Co. v. Rix- Mich. 107. . man, ]21 111. 214. New York. People v. Minnaugh, 502 Instbuctions to Jueies. [§ 212 the opinion of the reviewing court as the law of the case. 01 And it will be error to read only a part of the opinion as the law of the case, when, if the context is considered, it will be found that a very different rule of law was laid down by the reviewing court. The quotation from the opinion of such court must be sufficiently full to show its exact thought, and to avoid all possibility of misleading the jury. 62 So it frequently happens that "the language of an opinion ren- dered in the decision of a case is to be taken concretely with its context, * * * and a portion of its language cannot properly be made the foundation of an abstract instruction, to be applied to a different case, to which it is not appli- cable. ' ' 63 It is error to read a decision, and then state that the case at bar is a similar case, as this amounts to the expression of an opinion on the evidence. 64 However, in some cases it is said to be proper to read that part of the opinion rendered on a previous appeal laying down the law applicable to the case, if care is taken not to state the result of the former trial. 65 The court may, of course, add such further instruc- tions or explanations as are necessary to apply the opinions read to the case at bar. 66 § 213. Time of delivering instructions. Statutory provisions usually govern as to the time when the court is required to charge the jury, and in some states the instructions should be given before the beginning of the argument. 67 However, it has been held that notwithstand- ing such a statute, the court may, in his discretion, after the 61— Power v. Harlow, 57 Mich. 64— Frank v. Williams, 36 Fla. 136. 107. 65 — Power v. Harlow, 57 Mich. 62 — Laidlaw v. Sage, 80 Hun (N. 107; Panama E. Co. v. Johnson, 63 Y.) 550. See also, Cordell v. New Hun (N. Y.) 629. York Cent. & H. E. E. Co., 6 Hun 66— Freeman v. Weeks, 48 Mich. (N. Y.) 461. 255. 63 — Etchepare v. Aguirre, 91 Cal. 67 — Kellogg v. Lewis, 28 Kan. 535. 288, 25 Am. St. Eep. 180, 27 Pac. 668, 929. § 213] Presentation" to Jury. 503 argument, ' ' correct or qualify any statement of counsel that is liable to mislead the jury." GS But additional instructions after the argument should not go beyond what is fairly called for by the nature of the argument, or by some other good reason. 69 It has also been said that the giving of instructions after the conclusion of the argument to the jury should not be approved as a practice, but it is not reversible error. 70 In some states the statute requires the instructions to be given after the arguments of counsel are concluded. 71 ' ' The court does not err in reading to the jury and passing on the points of defendant, before giving the general charge to the jury. ' ' 72 Instructions given by the presiding judge in a criminal case, in the presence of the other judges, immediately after the proclamation of adjournment, but intended as the act of the court, are to be regarded as the act of the court. 73 However, where a charge in writing is requested, the 68— Kellogg v. Lewis, 28 Kan. 535. 71— In Ohio, under Rev. St. § 7300, As to rule in Indiana, see Supreme subd. 5 (see Page & Adams Ann. Tent Knights of Maccabees of Ohio Gen. Code § 11447), the court is World v. Ethridge, 43 Ind. App. 475. not required, in a criminal case, to It is not error for the trial court give defendant 's request before the to give additional instructions, or to argument begins. Umbenhauer v. modify those already given, after State, 4 Ohio Cir. Ct. R. 378, dis- the beginning of the argument, approving McGuire v. State, 3 Ohio Wood v. State, 64 Miss. 761. And Cir. Ct. R. 551. see, Missouri, K. & T. R. Co. of Texas See also, Cleveland & E. Electric v. Harrison, 56 Tex. Civ. App. 17. R. Co. v. Hawkins, 64 Ohio St. 391, The giving of an instruction after holding that Rev. St. Ohio, § 5190 the close of the argument before the (see Page & Adams Ann. Ohio Gen. jury, although irregular, is not sum- Code §11447), does not leave it dis- cient ground for reversal where the cretionary with the court to give in- giving of the instruction could work structions after the evidence is no harm. Cluskey v. City of St. closed. As to recalling jury, see Louis, 50 Mo. 89. .. Missouri, K. & T. R. Co. of Texas v. 69 — Foster v. Turner, 31 Kan. 58, Harrison, 56 Tex. Civ. App. 17. 1 Pac. 145. 72— Walton v. Hinnan, 146 Pa. St. 70 — Mann's Adm'r v. Reynolds, 396. — Ky. App. — , 150 S. W. 329. 73— State v. Engle, 13 Ohio 490. 504 Instructions to Juries. [§ 213 judge is not bound to give it at once, but may adjourn over to another day to prepare it. 74 Charging the jury is a high judicial function and it cannot be lawfully exercised on Sunday. 76 § 214. Consideration of instructions by jury. In a number of states, statutory provisions exist permit- ting or requiring the jury to take the instructions with them in their retirement. 77 "The whole doctrine of the qualification of one instruc- tion in a series by another instruction in the same series, or as to the curing of a slightly defective instruction in another instruction which is not defective, is without value or force if the jury have not the right among themselves to read and compare the instructions to see whether or not any one instruction of a series is qualified or cured in its defective character by another instruction in the series." 78 Refused instructions should not be given to the jury, and it has been held reversible error to allow a refused instruc- tion to go to the jury room even though partially correct. 79 74— Head v. Bridges, 67 Ga. 227. 1975. Tex. Code Cr. Proc. Tit. 8, And see, Millspaugh v. Missouri Pae. ch. 5, art. 742. E. Co., 138 Mo. App. 31, as to a re- 78 — Chicago Union Traction Co. v. quest after adjournment. Hanthorn, 211 111. 367. 76 — Moss v. State, — Tenn. — , 79 — Eefused charges should not be T73 S. W. 859. given to the jury with other papers In this ease the arguments of under such a statute; and where "de- counsel continued until 11:30 p. m. fendant handed the court two special on a Saturday when the court took a requested charges, Nos. 1 and 2, both recess and the charge was delivered written on the same piece of paper, ' ' to the jury at 11:00 a. m. on Sunday. and "the court gave No. 1, and For such error, the court after re- refused No. 2, and so indorsed them, viewing similar cases wherein the but handed both to the jury," and jury had been instructed on Sunday, ' ' when he read No. 1 he ' called the either by inadvertence or otherwise, attention of the jury especially to reversed and remanded the case. the one "refused," as refused, and 77 — California Penal Code, § 1137., told them that they should not con- Jones & Addington's 111. St. Ann., sider it,' " and some of the matter K 8612. Mont. Eev. Codes, 1907 contained in the refused instruction § 9313 N. C. Eev. 1905, § 537. Tex. was correct, it was reversible error Civ. St. 1911, p. 434, ch. 13, art. N to allow the jury to take to their § 214] Presentation to Juey. 505 But where a special charge is requested, approved and read to the jury, it is not reversible error that the jury inad- vertently fails to take such charge to the jury room. 80 room the instruction so marked "Be- 80 — Thomason v. State, 71 Tex. fused." Trinity County Lumber Co. Cr. App. 439. v. Denham, 85 Tex. 56. CHAPTEE XIX. Additional Instructions After Retirement op Jury, i. right and duty to give additional, instructions. § 215. Power of court to give additional instructions. § 216. Request of jury. § 217. Request of parties. § 218. Consent of counsel. § 219. Extent of power — What further instructions are proper. § 220. Same — Necessity of repeating entire charge. § 221. Exceptions to additional instructions. II. MANNER OF GIVING ADDITIONAL INSTRUCTIONS. § 222. Delivery in open court. § 223. Effect of violation of rule — Waiver of objections. § 224. Necessity of presence of counsel. § 225. Presence of accused in criminal cases. I. RIGHT AND DUTY TO GIVE ADDITIONAL INSTRUCTIONS. § 215. Power of court to give additional instructions. Except in one state, 1 it is a rule of almost universal appli- cation that the trial court may, of its own motion, recall the jury after they have retired to deliberate on their verdict, to give them further instructions, 2 especially after they 1 — See this section, post. Dakota. People v. Odell, 1 Dak. 2 — Alabama. Morris v. State, 25 197. Ala. 57. Georgia. Jeter v. Jones, 135 Ga. Arkansas: National Lumber Co. 22; Pritchett v. State, 92 Ga. 65; v. Snell, 47 Ark. 407; McDaniel v. White v. Fulton, 68 Ga. 511; Wood Crosby, 19 Ark. 533. v. Isom, 68 Ga. 417. California. People v. Mayes, 113 Illinois. Shaw v. Camp,' 160 111. Cal. 618, 45 Pac. 860; People v. 425; City of Joliet v. Looney, 159 Perry, 65 Cal. 568, 4 Pac. 572. 111. 471, aff'g 56 111. App. 502. Colorado. Hayes v. Williams, 17 Indiana. In re Darrow, 175 Ind. Colo. 465, 30 Pac. 352. 44; Breedlove v. Bundy, 96 Ind. 319; (506) § 215] Instructions Aftek Retirement of Juey. 507 have considered a case submitted to them for some length of time, 3 or where they report that they are unable to agree on a verdict. 4 In a number of states this matter of further instructing the jury after their retirement has been made the subject of statutory regulations, but it is believed that ho court in which one of these statutes has been construed has ever held that the court cannot, of its own motion, give further in- structions when the exigencies of the case demand such action. It has been he.ld that even after the jury have an- Hartman v. Flaherty, 80 Ind. 472; Hall v. State, 8 Ind. 439; Broad-" street v. McKamey, 41 Ind". App. 272. Iowa. Burton v. Neill, 140 Iowa 141, 17 Ann. Gas. 532. Maryland. United Railways & Electric Co. v. Carneal, 110 Md. 211. Massachusetts. Nichols v. Mun- sel, 115 Mass. 567; Florence Sew. Mach. Go. v. Grover & Baker Sew. Ma$ h. Co., 110 Mass. 70, 14 Am. Rep. 579. Minnesota. Holland v. Sheehan, 106 Minn. 545. Missouri. Scott v. Haynes, 12 Mo. App. 597. Nebraska. First Nat. Bank v. Hedgecock, 87 Neb. 220; McClary v. Stull, 44 Neb. 191. New York. Phillips v. New York Cent. & H. River R. Co., 127 N. Y. 657. North Carolina. Biggs v. Gur- ganus, 152 N. C. 173. Pennsylvania. Cox v. Highley, 100 Pa. St. 252. South Carolina. Dover v. Lock- hart. Mills, 86 S. C. 229; State v. Lightsey, 43 S. C. 114; Jones v. Swearingen, 42 S. C. 58. Texas. Benavides v. State, 31 Tex. Cr. App. 173, 37 Am. St. Rep. 799. 3— State v. Rollins, 77 Me. 380; Dover v. Lockhart Mills, 86 S. C. 229; Allis v. Unrted States, 155 U. S. 117, 39 L. Ed. 91. 4 — Arkansas. McDaniel v. Crosby, 19 Ark. 533. But see, St. Louis, I. M. & S. R. Co. v. Reed, 88 Ark. 458. Indiana. Hogg v. State, 7 Ind. 551. Iowa. State v. Pitts, 11 Iowa 343. Kansas. State v. Chandler, 31 Kan. 201, 1 Pac. 787. Maine. Edmunds v. Wiggin, 24 Me. 505. Massachusetts. Com. v. Snelling, 15 Pick. 334. Missouri. Dowzelot v. Rawlings, 58 Mo. 75. Ohio. Salomon v. Reis, 5 Ohio Cir. Ct. R. 375. Rhode Island. Alexander V. Gard- iner, 14 R. I. 15. Texas. Turner v. Lambeth, 2 Tex. 365. Wisconsin. Hannon v. State, 70 Wis. 448. * ■ On learning of a jury's disagree- ment, " it is competent for the court, , of its own m'otion, to give them any additional instruction, proper in it- self, which may be necessary to meet the difficulty in their minds. ' ' State v. Chandler, 31 Kan. 201, 1 Pac. 787. 508 Instructions to Juries. [§ 215 * nounced their verdict, but before its acceptance, the court may correct any erroneous instruction that has been given, and send them back again to deliberate. 5 The trial court has a large discretion in recalling juries and submitting amended or additional legal propositions by way of instructions, and unless it fairly appears that such discretion has been abused to prejudice of the party com- plaining, there is no ground for reversal. 6 It is within the discretion of the judge to have the jury brought in at any time to give them additional instructions, or to restate the evidence and principles of law applicable to ,the case, and the jury cannot forestall the action of the court by saying that they do not desire additional instruc- tions. 7 The discretion with which the court is thus vested is based on the soundest reasons. In the hurry of the trial, the court may have overlooked some instruction vitally important to a correct determination of the case. 8 It may also be that the instructions which it has given are vague and obscure, and have a tendency to mislead, which may be removed by a little explanation. 9 So, the court may have given some instructions which are, in point of law, erroneous. 10 5— Jack v. Territory, 2 Wash. T. 8— City of Joliet v. Looney, 159 101, 3 Pae. 832. See also, dictum in 111. 471; United Railways & Electric Florence Sew. Mach. Co. v. Grover Co. v. Carneal, 110 Md. 211; Cox v. & Baker Sew. Mach. Co., 110 Mass. Highley, 100 Pa. St. 252. 70, 14 Am. Rep. 579. Compare State 9 — Morris v. State, 25 Ala.' 57; v. Johnson, 30 La. Ann. 921, where it Florence Sew. Mach. Co. v. Grover. was held "not within the province & Baker Sew. Mach. Co., 110 Mass. of the judge presiding at a criminal 70, 14 Am. Rep. 579. trial to give such instructions to the 10 — State v. Lightsey, 43 S. C. 114. jury" as would lead to a modifica- And such erroneous instruction may tion or change of the rerdict. be withdrawn. Broadstreet v. Mc- 6— Hayes v. Williams, 17 Colo. Kamey, 41 Ind. App. 272; Hill v. 465, 30 Pac. 352. See In re Darrow, Hayes, 199 Mass. 411, 18 L. R. A. 175 Ind. 44. • (N. S.) 375. 7 — Nichols v. Munsel, 115 Mass. 567. § 216] Instructions After Retirement of Jury. 509 It can hardly be contended that it would be preferable to leave the court' no discretion in the matter of giving further instructions in any of these contingencies, and to run the risk of an erroneous verdict and the expense of a new trial. 11 In Mississippi, a statute exists prohibiting the giving of any instructions to the jury unless the parties make a re- quest therefor, 12 and this prohibition makes it erroneous for the court, of its own motion, or at the request of the jury, to give the jury further instructions after they have retired to consider their verdict. 13 § 216. Request of jury. In a number of states statutory provisions exist, providing that the jury, after their retirement, may be conducted into the court for additional or further instructions, if they so request. In such case the additional instructions must be given in the presence of or after notice to the parties or their counsel. 14 This practice of giving the jury additional instructions at their request is common and is approved by all authorities, 13 11 — In Com. v. Snelling, 15 Pick. Ohio Gen. Code 1910, § 11452; Okla. (Mass.) 334, the court said that the Rev. L. Ann. 1910, §5913; Shan- propriety of recalling the jury and non's Tenn. Code 1896, §7186; Utah explaining the matter further is' Comp. L. 1907, § 3156. hardly open to reasonable doubt. 15 — Bank of Kentucky v. McWil- And see In re Darrow, 175 Ind. 44. liams, 2 J. J. Marsh: (Ky.) 263; 12 — Lavenburg v. Harper, 27 Miss. Woodruff v. King, 47 Wis. 261. 299. See also, § 156, ante. It is well settled that the court 13 — Duncan v. State, 49 Miss. may properly recall the jury if they 331; Randolph v. Govan, 14 Smedes request it, and give them additional & M. (Miss.) 9; Taylor v. Manley, instructions. 6 Smedes & M. (Miss.) 305, holding Arkansas. St. Louis, I. M. & S. that a violation of the statute is a R. Co. v. Reed, 88 Ark. 458. mere irregularity, and not ground for Georgia. Jeter v. Jones, 135 Ga. reversal where the instruction given 22. is correct. Illinois. Shaw v. Camp, 160 111. 14— Ark. Dig. St. 1904, §§2395, 425; Lee v. Quirk, 20 111. 392; 6200; Pomeroy's Cal. Code Civ. Arnold v. Phillips, 59 111. App. 213. Proc, §614; Mills' Colo. Code Proc, Indiana. Sage v. Evansville & T. § 192; Mont. Rev. Code 1907, § 6751; H. R. Co., 134 Ind. 100; Gaff v. 510 Instructions to Juries. [§216 except in Mississippi, where the court can only give instruc- tions on the request of the parties. 18 A rule of court that requests for instructions will not be considered "unless presented before the commencement of the final argument ' ' has been held not to apply to requests by a juror for further instructions. 17 Some decisions go a step further, and hold that it is not only proper, but the duty of the court, to comply with a request from the jury for further instructions. 18 § 217. Request of parties. The decisions' are not entirely harmonious as to the right of the parties to further instructions when the court gives additional instructions of its own motion. But the weight Greer, 88 Ind. 122, 45 Am. Rep. 449; Farley v. State, 57 Ind. 331. Missouri. Wilkinson v. St. Louis Sectional Dock Co., 102 Mo. 130; State v. Williams, 69 Mo. 110. Nebraska. First Nat. Bank v. Hedgeeock, 87 Neb. 220. North Carolina. Biggs v. Gur- ganus, 152 N. C. 173. Ohio. Hulse v. State, 35 Ohio St. 421. Oregon. Shields v. Southern Pae. Co., 57 Ore. 347, 112 Pae. 4. South Carolina. Auten v. Catawba Power Co., 84 S. C. 399. Texas. Turner v. Lambeth, 2 Tex. 365; Wilson v. State, 37 Tex. Cr. App. 156. Utah. State v. Kessler, 15 Utah 142, 62 Am. St. Rep. 911, 49 Pae. 293. Virginia. Riehlands Iron Co. v. Elkins, 90 Va. 249; Williams v. Com., 85 Va. 607. Wisconsin. Woodruff v. King, 47 Wis. 261. United States. United States v. White, 5 Cranch, C. C. 116, Fed. Cas. No. 16,677; Turner v. Foxall, 2 Cranch, C. C. 324, Fed. Cas. No. 14,255; Forrest v. Hanson, 1 Cranch, C. C. 63, Fed. Cas. No. 4,943. 16 — Lavenburg v. Harper, 27 Miss. 299. In this case it was held error to recall the jury and give them fur- ther instructions at their request, but without the consent of parties. It was further held that if the in- structions given were in conformity to law, the cause would not be re- versed. See also, Randolph v. Go- van, 14 Smedes & M. (Miss.) 9; Tay- 'lor v. Manley, 6 Smedes & M. (Miss.) 305. 17 — Arnold v. Phillips, 59 111. App. 213. 18— King v. State, 86 Ga. 355; Phelps v. State, 75 Ga. 571; O'Shields v. State, 55 Ga. 696; Bank of Kentucky v. Me Williams, 2 J. J. Marsh. (Ky.) 263; Stevenson v. New York Contracting Co. — Pennsyl- vania Terminal, 137 App. Div. (N. Y.) 742. "There may be instances when it will become the imperative duty of a court to rectify some omission, or cure some oversight, by giving to a jury * * * an additional in- § 217] Instructions After Retirement of Jury. 511 of authority is to the effect that such further instructions are proper, where each party has an equal opportunity to be heard and where the further instructions are by way of explanation or modification of the instructions given. 19 In one state, when the court gives further instructions of its own motion, or at the request of the jury, no right of the parties to any further instructions is recognized, 20 and in other states it has been held that where the court gives ad- ditional instructions at the request of the jury, a refusal to give further instructions at the request of the parties is not reversible error. 21 It has also been held that a mere repetition of instruc- tions already given does not give parties the right to ask a new and substantial charge, 22 or for any additional instruc- struction. " Dowzelot v. Rawlings, 58 Mo. 75. And see, Auten v. Cataw- ba Power Co., 84 S. C. 399. 19^The parties are entitled to further instructions by way of ex- planation or modification of addi- tional instructions given by the court of its own motion, or at the request of the jury. Alabama. Harper v. State, 109 Ala. 66; Kuhl v. Long, .102 Ala. 569; Prosser v. Henderson, 11 Ala. 484. Ulinbis. Shaw v. Camp, 160 111. 430; Fisher v. People, 23 111. 283. Iowa. O'Connor v. Guthrie, 11 Iowa 80. Minnesota. Hudson v. Minneap- olis, L. & M. Ry. Co., 44 Minn. 55. Missouri. Chouteau v. Jupiter Iron Works, 94 Mo. 388. New Hampshire. Page v. Kins- man, 43 N. H. 328. New Jersey. Cook v., Green, 6 N. J. L. 109. Texas. Keeble v. Black, 4 Tex. 69. Additional instructions after re- tirement of the jury are proper where each party has equal oppor- tunity to submit further instructions. Shaw v. Camp, 160 HI. 425, aff'g 61 111. App. 62; City of Joliet v. Looney, 159 111. 471, aff'g 56 111. App. 502. See also, Yeldell v. Shinholster, 15 Ga. 189, in which it was held that where, after failure to agree, the jury return into court for fur- ther instructions, and a party re- quests an instruction on a point omitted in the charge, and to which omission the party had called the court's attention at the time, it is error to refuse the instruction. As to refusal of instructions cov- ered by those given, see § 197, ante. 20 — Nelson v. Dodge, 116 Mass. 367; Kellogg v. French, 15 Gray (Mass.) 354. 21 — State v. Maxent, 10 La. Ann. 743; Williams v. Com., 85 Va. 607. 22 — Prosser v. Henderson, 11 Ala. 484, where it was said: "If this can be done, we see no reason why the jury should not be required to be brought again into court at any time 512 Instructions to Juries. [§ 217 tions whatever, though it would seem that it is within the court's discretion to comply with a request for additional instructions in such case. 23 It has already been noted that the court is not bound to give requested instructions unless the request is made within the proper time, but that it is within the sound discretion of the court to do so if it. sees fit. 24 Accordingly, it has been held proper for the trial court to refuse requests for instructions, made after the retire- ment of the jury, 25 or after they have announced their in- ability to agree on a verdict, 26 it being considered that when the jury have retired under instructions to which there was no exception, it is within the unreviewable discretion of the court whether they shall be recalled for further instruc- tions. 27 Even if the court should choose to exercise its discretion by recalling the jury for further instructions at the request of the parties, it should not do so without good grounds. The indiscriminate exercise of such discretion might place it in the power of counsel to have emphasized by the court any proposition he might choose to submit, and have the jury believe the court attached great weight to the matter about which it had been recalled for instructions. 28 before they have rendered their v. Shearin, 95 N. C. 391; State v. verdict, and additional charges re- Barbee, 92 N. C. 820; Scott v. Green, quired to be given by the court." 89 N. C. 278; Williams v. Com., 85 23— Harvey v. Graham, 46 N. H. Va. 609; Turner v. Foxall, 2 Cranch, 175. C. C. 324, Fed. Cas. No. 14,255; For- 24: — See § 174, ante, "Necessity for rest v. Hanson, 1 Cranch, C. C. 63, request in apt and proper time." Fed. Cas. No. 4,943. See also, Buck v. Buck, 4 Baxt. 26— Cady v. Owen, 34 Vt. 598. (Tenn.) 392, where it was held that 27 — Lafoon v. Shearin, 95 N. C. after the jury have failed to agree 391. they may be recalled at the instance 28 — Bowling v. Memphis & C. E. of a party and given further and Co., 15 Lea (Tenn.) 122. See also, fuller instructions. St. Louis, I. M. & S. R. Co. v. Reed, 25— Norton v. McNutt, 55 Ark. 59; 88 Ark. 458. State v. Rowe, 98 N. C. 629; Lafoon § 219] Instructions After Retirement of Jury. 513 § 218. Consent of counsel. It is no error for the judge, by consent of counsel on both sides, to indorse on instructions already given additional instructions to the jury. 29 § 219. Extent of power — What further instructions are proper. There is no error in the judges re-reading an instruction at the jury's request, 30 as when the jury request that the instructions be re-read in order to satisfy them as to the true state of the law upon the issue before them, 31 or when "they say that they do not understand the instructions given. 32 In such case the court may correct an erroneous instruc- tion given, 33 give additional instructions, 34 or withdraw in- structions already given. 35 In some jurisdictions the court may restate the evidence, or a portion of it, 36 although this is not proper in most juris- dictions, as judges are expressly prohibited from charging in respect to matters of fact. 37 29 — Noffsinger v.' Bailey, 72 Mo. 35 — Sage v. Evansville & T. H. R. 216. Co., 134 Ind. 100; United Railways 30 — Gracy v. Atlantic Coast Line & Electric Co. v. Carneal, ' 110 Md. R. Co., 53 Fla. 350. And see, St. 211. Louis, I. M. & S. R. Co. v. Reed, 88 36— Maine. Edmunds v. Wiggin, Ark. 458. 24 Me. 505. 31 — Woodruff v. King, 47 Wis. 261. Massachusetts. Nichols v. Munsel, 32— St. Louis, I. M. & S. R. Co. 115 Mass. 567. v. Reed, 88 Ark. 458; Gaff v. Greer, New Yo1 *- Drew v. Andrews, 8 88 Ind. 122, 45 Am. Rep. 449; Salo- Hun 23 - mon v. Reis, 5 Ohio Cir. Ct. R. 375. North Carolina. See Biggs v. See also, Nichols v. Munsel, 115 Gurganus 152 N. C. 173. -, KB L Ohio. Hulse v. State, 35 Ohio St. Mass. 567. ,„., ' 33— Sage v. Evansville & T. H. R. 421. . r , , Wisconsin. Hannon v. State, 70 Co., 134 Ind. 100; McClelland v. wig 44g B y gmi ^ ^.^ Louisville, N. A. & C. Ry. Co., 94 68 ' , Ind. 276; Holland v. Sheehan, 106 United States. Allis v. United Minn. 545, States, 155 U. S. 117, 39 L. Ed. 91. 34— Hamilton v. State, 62 Ark. 37— See State v. Maxwell, 42 Iowa 543. 208. See also, §§ 116, et seq., ante. Blashfield Vol. 1—33 514 Instructions to Juries. [§ 219 The court may, at their request, give the jury any further instruction on any question of law arising on the facts proven, on which they say that they are in doubt, 38 although it has been held that the court is not justified, in any case, in giving another full, complete and different charge to the jury upon nearly all, or even some, of the material questions involved in the case. 39 A Texas statute, providing that where the jury, after retirement, ask further instructions, no charge shall be given except upon the particular point on which it is asked, has been strictly enforced in a number of cases. 40 The wisdom of such a statute is questionable, and the gen- eral rule is that, "in answering questions asked by the jury when they come in for further instructions, the court is not restricted to categorical answers," but may and should give any further instructions necessary. 41 As already shown, the discretion of the court in recalling the jury for further instructions is practically unlimited, and, this being so, there can be no reason why it should be restricted to answering the precise point presented by the jury. On principle, there can be no difference in the extent to which it may go in giving further instructions, whether it take the initiative, and gives further instructions of its own motion, or merely at the request of the jury. 38 — O 'Shields v. State, 55 Ga. Georgia. Jeter v. Jones, 135 Ga. 696; State v. Chandler, 31 Kan. 201, 22. 1 Pac. 787; Wilkinson v. St. Louis Indiana. Sage v. Evansville & T. Sectional Dock Co., 102 Mo. 130. H. E. Co., 134 Ind. 100; McClelland 39— Foster v. Turner, 31 Kan. 58, v. Louisville, N. A. & C. Ky. Co., 94 1 Pae. 145. Ind. 276. 40 — See Vernon's Sayles' Texas Maine. Edmunds v. Wiggin, 24 Civ. St. 1914, art. 1962, and Will- Me. 509. son's- Tex. Cr. St., Code Cr. Proc. New York. Stevenson v. New art. 734; Wharton v. State, 45 Tex. York Contracting Co., 137 App. Div. 2; Hannahan v. State, 7 Tex. App. 742. 610; Garza v. State, 3 Tex. App. Vermont. Paine v. Hutehins, 49 287; Chamberlain v. State, 2 Tex. Vt. 314. And see, generally, the App. 451. cases cited this section, ante. 41 — Arkansas. Hamilton v. State, 62 Ark. 543. § 220] Instructions After Eetirement of Jury. 515 After the retirement of the jury, the court may, of its own motion, recall them and give instructions inadvertently omitted, 42 or which have been erroneously refused, 43 or in- structions explanatory of those already given, 44 or with- drawing or modifying an erroneous instruction given; 45 or, where the parties have consented that the jury shall take the minutes of the testimony to the jury room, the court may recall the jury to read to them a portion of a deposition ad- mitted on the trial, but which, through inadvertence, had not been given to the jury, 46 or to restate the court 's opinion as to the credibility of a witness (the court having stated such opinion in the original charge, at the instance of coun- sel) ; 47 or to define the punishment for the different degrees of crime; 48 or to admonish the jury of the impropriety of a juror going into the jury box with a predetermination as to the result which he will favor, and to cause a disagree- ment if the verdict cannot be rendered as he wants it. 49 § 220. Same — Necessity of repeating 1 entire charge. Where the court is asked by the jury to repeat a portion of the charge, or to give a new instruction on a particular point, it is not, according to some decisions, bound to repeat 42 — Pritchett v. State, 92 Ga. 65; Massachusetts. Hill v. Hayes, 199 Com. v. Snelling, 15 Pick. (Mass.) Mass. 411, 18 L. E. A. (N. S.) 375. 334; Dowzelot v. Bawlings, 58 Mo. Missouri. Scott v. Haynes, 12 75; Cox v. Highley, 100 Pa. St. 252. Mo. App. 597. 43 — Phillips v. New York Cent. & South Carolina. State v. Light- H. Biver B. Co., 127 N. Y. 657. sey, 43 S. C. 114. 44 — Florence Sew. Mach. Co. v. Washington. Jack v. Territory, Grover & Baker Sew. Mach. Co., 110 2 Wash. T. 101, 3 Pac. 832. Mass. 70, 14 Am. Eep. 579; Com. v. 46— Coit v. Waples, 1 Minn. 134 Snelling, 15 Pick. (Mass.) 334; (Gil. 110). Holland v. Sheehan, 106 Minn. 545. 47 — State v. Summers, 4 La. Ann. 45 — Indiana. Sage v. Evansville 27. & T. H. E. Co., 134 Ind. 100; Hart- 48— State v. Kessler, 15 Utah 142, man v. Flaherty, 80 Ind. 472; Hall 62 Am. St. Eep. 911, 49 Pac. 293. v. State, 8 Ind. 439. 49 — State v. Lawrence, 38 Iowa Maryland. United Eailways & 51. See also, State v. Blackwell, 9 Electric Co. v. Carneal, 110 Md. 211. Ala. 79. 516 Insteuctions to Juries. [§ 220 the whole charge, 50 as this practice might lead to confusion, and tend to protract proceedings needlessly. 51 However, in one case, it has been held that if the jury- merely disagree as to the result,, after considering the evi- dence and instructions, it is erroneous for the court to repeat or recharge disputed portions of the charge, and the reason assigned was that the jury would probably conclude that the matter thus recharged was controlling in the case. 52 In another case, which assumed to follow this decision, it was held that it was reversible error to recall the jury and repeat a portion of the charge, in the absence of a request by the jury, and against the objection of the appellant. 53 A refusal to accede to a request of a party to re-read a portion of the instructions touching a special point is not error where the court offers to re-read the entire charge if the jury desire it, and the foreman states that the jury do . not desire such reading. 54 In jurisdictions where it is permissible for the court to state the evidence in charging the jury, the court is not bound to repeat all the evidence when asked by the jury to restate a portion of it. 55 Though it is better practice, on restating the evidence upon a particular point, to restate all of it, yet, under a statute authorizing the court to state anew the evidence or any part of it, the court may merely state the evidence in favor of one party. 56 But where a part only of the evidence is restated, it is well to caution the jury that the other evi- dence in the case must be equally considered. 57 50— St. Louis, I. M. & 8. R. Co. v. 54— Cockrill v. Hall, 76 Cal. 192, Reed, 88 Ark. 458; Gravett v. State, 18 Pac. 318. 74 Ga. 196; Wilson v. State, 68 Ga. 55— Byrne v. Smith, 24 Wis. 68; 827; O 'Shields v. State, 55 Ga. 696; Allis v. United States, 155 U. S. 117. Hateher v. State, 18 Ga. 460. 56— Byrne v. Smith, 24 Wis. 69. 51— Gravett v. State, 74 Ga. 196. 57— Allis v. United States, 155 U. 52— Swaggerty v. Caton, 1 Heisk. S. 123, 39 L. Ed, 94. See also, Biggs (Tenn.) 202. v. Gurganus, 152 N. C. 173. Where 53 — Granberry v. Frierson, 2 Baxt. an admonition to consider all the (Tenn.) 326. evidence was held proper. 222] Instructions After Retirement of Jury. 517 § 221. Exceptions to additional instructions. When further instructions are given after the retirement of the jury, parties have the same right to except to such in- structions' as to those originally given, 58 and may also except to a refusal of further instructions asked by them in cases where they are entitled to ask for further instructions. 59 II. MANNER OF GIVING ADDITIONAL INSTRUCTIONS. § 222. Delivery in open court. Charging the jury is a high judicial function, and after the jury have retired the court should not send additional instructions to them by an officer, or go in person to the jury room to communicate with them. All communications should be made in open court. 60 58 — Alabama. Feibelman v. Man- chester Fire Assur. Co., 108 Ala. 180; Kuhl v. Long, 102 Ala. 563. Illinois. Crabtree v. Hagenbaugh, 23 111. 349, 76 Am. Dee. 694. Indiana. Fish v. Smith, 12 Ind. 563. Iowa. O'Connor v. Guthrie, 11 Iowa 81. Louisiana. State v. Frisby, 19 La. Ann. 143. Massachusetts. Nelson v. Dodge, 116 Mass. 367; Kellogg v. French, 15 Gray 357; Com. v. Snelling, 15 Pick. 334. New Jersey. Cook v. Green, 6 N. J. L. 109. Tennessee. Wade v. Ordway, 1 Baxt. 229. 59 — Feibelman v. Manchester Fire Assur. Co., 108 Ala. 180; Prosser v. Henderson, 11 Ala. 484. 60 — Alabama. Johnson v. State, 100 Ala. 55; Cooper v. State, 79 Ala. 54. Illinois. Chicago & A. R. Co. v. Robbins, 159 111. 598; Crabtree v. Hagenbaugh, 23 111. 349, 76 Am. Dec. 694; Fisher v. People, 23 111. 283. Indiana. Quinn v. State, 130 Ind. 340; Low v. Freeman, 117 Ind. 341; Blacketer v. House, 67 Ind. 414; Smith v. McMillen, 19 Ind. 391; Fish v. Smith, 12 Ind. 563; Hall v. State, 8 Ind. 444. Iowa. See Burton v. Neill, 140 Iowa 141, 17 Ann. Cas. 532. Kentucky. Goode v. Campbell, 14 Bush 75. Massachusetts. Bead v. City of Cambridge, 124 Mass. 567, 26 Am. Rep. 690; Sargent v. Roberts, 1 Pick. 337; 11 Am. Dee. 185. Michigan. Hopkins v. Bishop, 91 Mich. 328, 30 Am. St. Rep. 480; Fox v. Peninsular White Lead & Color Works, 84 Mich. 676; Snyder v. Wil- son, 65 Mich. 336. Minnesota. Hoberg v. State, 3 Minn. 262 (Gil. 181). Missouri. State v. Miller, 100 Mo. 606; Chouteau v. Jupiter Iron Works, 94 Mo. 388; State v. Alexander, 66 Mo. 148; Norton v. Dorsey, 65 Mo. 376. New York. Watertown Bank & Loan Co. v. Mix, 51 N. Y. 561; Wig- gins v. Downer, 67 How. Pr. 68; 518 Instructions to Juries. [§ 222 The judge has no more right in the jury room while the jury are deliberating than any other person, even though he holds no communication with them, 61 and, if he does so, the honesty of his intentions in no way lessens the impropriety of such action. 62 This rule is applicable, though the court has temporarily adjourned. "The judge carries no power with him to his lodgings, and has no more authority over the jury than any other person, and any direction to them from him, either verbal or in writing, is improper. ' ' 63 If the jury desire any further instructions they should send a request to the court through the officers in attendance, that they may, in a body, be brought into court. 64 In one case a judgment was reversed because the judge went to the jury room and stood in the doorway, which was partially open. It was held that the party in whose favor the decision was rendered could not be permitted to show that the judge said nothing to the jury. 65 In another case it was said that the affidavits of jurors can- not be read to impeach their verdict after it has been ren- dered, so that it may be impossible to show in any given case whether or not an intruder in the jury room did con- Plunkett v. Appleton, 51 How. Pr. Washington. State v. Wroth, 15 469; Kehrley v. Shafer, 92 Hun 196; Wash. 621, 47 Pao. 106. High v. Chick, 81 Hun 100; Mahoney 61— Hoberg v. State, 3 Minn. 262 v. Decker, 18 Hun 365; Taylor v. (Gil. 181);' Gibbons v. Van Alstyne, Betsford, 13 Johns. 487. 29 N. Y. St. 463. Ohio. Kirk v. 'State, 14 Ohio 511; 62— Pish v. Smith, 12 Ind. 563; Campbell v. Beckett, 8 Ohio 211. Hoberg v. State, 3 Minn. 262 (Gil. Pennsylvania. Sommer v. Huber, 181); Valentine v. Kelley, 54 Hud 183 Pa. St. 162. (N. Y.) 79. Rhode Island. State v. Smith, 6 63 — Sargent v. Roberts, 1 Pick. R. I. 33. (Mass.) 337, 11 Am. Dec. 185. As Texas. Texas Midland R. Co. v. to recalling jury, see Missouri, K. & Byrd, 102 Tex. 263', 20 L. R. A. (N. T. R. Co. of Texas v. Harrison, 56- S.) 429, 20 Ann. Cas. 137. Tex. Civ. App. 17. Vermont. State v. Patterson, 45 64— Fisher v. People, 23 111. 283. Vt. 308, 12 Am. Rep. 200n. 65— State v. Wroth, 15 Wash. 621, Virginia. Traders' & Truckers' 47 Pac. 106. Bank v. Black, 108 Va. 59. §223] Instructions After Eetirement of Jury. 519 verse with the jury, or what he said, and that if it were assumed that the judge said nothing, but merely remained in the jury room listening to their discussions, it could not be said that his presence did not affect their decision. 66 In New Hampshire, the rule that no communications be- tween the court and jury should be had except in open court does not obtain, 67 and in South Carolina, a s.imilar decision was made in an early case. 68 § 223. Effect of violation of rule— Waiver of objections. Ordinarily, the violation of the rule requiring instruc- tions to be delivered in open courts is error, warranting reversal of the judgment, 69 since it will be conclusively pre- sumed that injury resulted. Accordingly, the party com- plaining need not show that he was prejudiced, in order to be entitled to a new trial, 70 and the court will not inquire whether the instruction given was material, or had any in- fluence upon the verdict? L or was prejudicial to either party. 72 In some cases, however, it has been held that no prejudice 66 — Gibbons v. Van Alstyne, 29 Minnesota. Hoberg v. State, 3 N. Y. St. 461. Minn. 262 (Gil. 181). 67 — Allen v. Aldrich, 29 N. H. 63; Missouri. Chouteau v. Jupiter Bassett v. Salisbury Mfg. Co., 28 Iron Works, 94 Mo. 388; State v. N. H. 438; School Dist. No. 1 in Mil- Alexander, 66 Mo. 148; Norton v. ton v. Bragdon, 23 N. H. 517; Shap- Dorsey, 65 Mo. 376. ley v. White, 6 N. H. 172. New York - See Plunkett v. Ap- 68— Goldsmith v. Solomons, 2 P leton > 51 How - Pr - 469 J Hi S h v - •Strob CS C 1 296 Chick, 81 Hun 100; Gibbons v. Van 69-niinofc, Chicago & A. R. Co. A1 ^ ne > f 9 *?• T. St. 461. v. Bobbins, 159 111. 598. 18^^62. V ' Indiana. Quinn v. State, 130 Ind. ™ d i ' t • ,. „ ,, T ^ ' 70 — People v. Lmzey, 79 Hun (N. 340; Fish v. Smith, 12 Ind. 563; Hall Y ) 23 v. State, 8 Ind. 439. 71— Kehrley v. Shafer, 92 Hun (N. Massachusetts. Sargent v. Roberts, y.) 196; Gibbons v. Van Alstyne, 29 1 Pick. 337, 11 Am. Dec. 185. N. Y. St. 461. Michigan. Hopkins v. Bishop, 91 72 — Read v. City of Cambridge, Mich. 328, 30 Am. St. Rep. 480. 124 Mass. 567, 26 Am. Rep. 690. 520 Instructions to Jueies. „ [§ 223 resulted and that the judgment would not be reversed be- cause the rule was violated. 73 It is proper for the trial judge to give additional instruc- tions otherwise than in open court, if the parties waive the rule so requiring and consent to such action of the judge. 74 In such case, it is necessary that the consent of both par- ties be obtained, 75 and it is usually held that such consent must be expressly given, 78 although there are some decisions which hold that where irregular communications are made to the jury, either in the absence of counsel or by sending to the jury room, and counsel are afterwards apprised of the communication, and make no objection, a new trial will not be granted. 77 But ordinarily, if counsel are aware that the judge is going into the jury room, and make no objection, this does not amount to a consent to instructions given while in the jury room. 78 Even when consent is obtained for the trial judge to go to the jury room, he should confine his visit strictly to the purpose for which permission was granted, and should not give any instructions without the knowledge of counsel. 79 § 224. Necessity of presence of counsel. .There is some conflict in the decisions as to the necessity of counsel being present when additional instructions are 73 — Moseley v. Washburn, 165 76 — Watertown Bank & Loan Co. Mass. 417; Galloway v. Corljitt, 52 v. Mix, 51 N. Y. 561; Moody v. Mieh. 461. Pomeroy, 4 Denio (N. Y.) 115; Bunn 74— City of Joliet v. Looney, 159 v. Crowl, 10 Johns. (N. Y.) 239. 111. 471; McCrory v. Anderson, 103 77 — Mahoney v. Decker, 18 Hun Ind. 12; Smoke v. Jones, 35 Mich. (N. Y.) 365; Zust v. Smitheimer, 34 408. See also, Hopkins v. Bishop, 91 N. Y. St. 583;, Thorp v. Riley, 29 Mich, 328, 30 Am. St. Rep. 480; Ben- N. Y. St. 520. son v. Clark, 1 Cow. (N. Y.) 258; 78 — Moody v. Pomeroy, 4 Denio Plunkett v. Appleton, 51 How. Pr. (N. Y.) 115. (N. Y.) 469; Taylor v. Betsford, 13 79— Seeley v. Bisgrove, 83 Hun Johns. (N. Y.) 487; Neil v. Abel, 24 (N. Y.) 293. Wend. (N. Y.) 185. 75— Smith v. McMillen, 19 Ind. 391. § 224] Instructions After Retirement op Jury. 521 given to the jury, either at their own request or on the court's own motion, although this conflict is due in some cases to the effect of statutory provisions governing the matter. In some states it is held that the trial court should refrain from instructing the jury in the absence of counsel, if it can conveniently do so, but that the act is not reversible error, even though counsel are not notified if the instructions are given at a regular session when the attorneys might reason- ably have been expected to be in attendance. 80 The matter of notifying counsel is regarded rather as a matter of courtesy than of legal right, 81 since it is the duty of counsel to be present in court, 82 and since otherwise 80 — Arizona. Torque v. Carrillo, 1 Ariz. 336, 25 Pac. 526. Kansas. Earner v. Kansas City- Elevated R. Co., 82 Kan. 842, 109 Pae. 676. Maine. State v. Pike, 65 Me. 111. Massachusetts. Kullberg v. O'Donnell, 158 Mass. 405, 35 Am. St. Rep. 507 (explaining Sargent v. Roberts, 1 Pick. 337, 11 Am. Dee. 185). Minnesota. Reilly v. Bader, 46 Minn. 212; Hudson v. Minneapolis, L. & M. Ry. Co., 44 Minn. 52. New Hampshire. Ahearn v. Mann, 6ft N. H. 472; Leighton v. Sargent, 31 N. H. 119, 64 Am. Dec. 323; Allen v. Aldrich, 29 N. H. 63; Bassett v. Salisbury Mfg. Co., 28 N. H. 438; Milton School JDist. v. Bragdon, 23 N. H. 507. New Jersey. Cooper v. Morris, 48 N. J. L. 607. North Carolina. Biggs v. Gur- ganus, 152 N. C. 173. Rhode Island. Alexander v. Gard- iner, 14 R. I. 15. Wisconsin. Meier v. Morgan, 82 Wis. 289, 33 Am. St. Rep. 39; Chap- man v. Chicago & N. W. Ry. Co., 26 Wis. 295, 7 Am. Rep. 81. United States. Aerheart v. St. Louis, I. M. & S. R. Co., 40 C. C. A. 171, 99 Fed. 907. 81— State v. Pike, 65 Me. Ill; Hudson v. Minneapolis, L. & M. Ry. Co., 44 Minn. 52; Chapman v. Chi- cago & N. W. R. Co., 26 Wis. 295, 7 Am. Rep. 81. The giving of notice to counsel is a matter of grace or favor, and, while the custom of giving notice is not inherently vicious, the court must have power to proceed without such notice; otherwise, the transac- tion of business would be dependent upon the favor of counsel or liti- gants. Chapman v. Chicago & N. W. Ry. Co., 26 Wis. 295, 7 Am. Rep. 81. 82 — "Counsel, by purposely or in- advertently withdrawing from the court, cannot take away the power, or suspend the right to exercise it until they can be found and brought in, if willing to come. It is the duty of counsel engaged in the trial of a case to remain in or be represented at the court during its sessions until 522 Instructions to Jtjkies. [§224 counsel could, by withdrawing from the court room, sus- pend the court's power. 83 However, in some cases it is said that it would be better to attempt to notify counsel, 84 and the power to reinstruct a jury in the absence of counsel, like other -powers, may be abused, and in such case the remedy is by motion for a new trial. 85 In some states, usually under statutory provisions, addi- tional instructions must be given, either in the presence of counsellor after an attempt has been made to notify them that further instructions will be given. 86 the jury having the case in charge is discharged. * * * The failure of counsel to perform their duty does not deprive the court of its power to discharge its duty. The court is not required to send out its officers to invite counsel to attend to their duties, and hear additional instruc- tions which the court proposes to give to the jury." Cornish v. Graff, 36 Hun (N. Y.) 160. To the same effect is Hudson v. Minneapolis, L. & M. Ry. Co., 44 Minn. 52. And see, Holland v. Sheehan, 106. Minn. 545. ' ' In cdntemplation of law, the par- ties and their counsel remain in court until a verdict has been rendered, or the jury discharged from rendering one." Cooper v. Morris, 48 N. J. L. 607. 83 — ' ' The court may proceed with- out it [notice], subject to the power of opening the proceedings, where sufficient cause of absence is shown, and ,it appears that injustice has been done. The idea that the court cannot proceed without causing no- tice to be given, or that it is error to do so, and that it must await the motion and presence of counsel or their clients, would be intolerable, for then no business could be done and no proceedings taken except by the favor of counsel or of litigants." Chapman v. Chicago & N. W. Ey. Co., 26 Wis. 306. 84— Torque v. Carrillo, 1 Ariz. 336, 25 Pac. 526; Hudson v. Minneapolis, L. & M. Ey. Co., 44 Minn. 52; Trad- ers' & Truckers' Bank v. Black, 108 Va. 59; Meier v. Morgan, 82 Wis. 289, 33 Am. St. Eep. 39s ' 85— Cornish v. Graff, 36 Hun (N. Y.) 160. 86 — Alabama. Kuhl v. Long, 102 Ala. 569; Johnson v. State, 100 Ala. 55; McNeil v. State, 47 Ala. 498. California. People v. Mayes, 113 Cal. 618, 45 Pac. 860; People v. Trim, 37 Cal. 274; Eedman v. Gulnac, 5 Cal. 148. Georgia. Martin v. State, 51 Ga. 569. Illinois. Chicago & Alton E. Co. v. Bobbins, 159 111. 598, rev'g 54 111. App. 611; Illinois Cent. R. Co! v. Ferrell, 108 111. App. 659. Indiana.' Blacketer v. House, 67 Ind. 414; Jones v. Johnson, 61 Ind. 257; Fish v. Smith, 12 Ind. 563. Iowa. Burton v. Neill, 140 Iowa 141, 17 Ann. Cas. 532. Kentucky. Pierce v. Com. (Ky.) § 224] Instructions After Ketirement op Jury. 523 In such states, the objection that counsel could stop the trial by absenting himself from the courthouse has been dis- 42 S. W. 107; Goode v. Campbell, 14 Bush 75. Louisiana. State v. Davenport, 33 La. Ann. 231; State v. Frisby, 19 La. Ann. 143. Minnesota. Holland v. Sheehan, 106 Minn/ 545. Missouri. State v. Miller, 100 Mo. 606; Chinn v. Davis, 21 Mo. App. 363. New York. "Wheeler v. Sweet, 137 N. Y. 438; Kehrley v. Shafer, 92 Hun 196; People v. Cassiano, 30 'Hun 388. Tennessee. Wade v. Ordway,' 1 Baxt. 229. Contra, Wiggins v. Downer, 67 How. Pr. ' (N. Y.) 69. And see, Bur- ton v. Neill, 140 Iowa 141, 17 Ann. Cas. 532, where the presence of coun- sel was considered unnecessary when the court merely admonished the jury to agree. It is error to give an additional instruction after retirement in the absence of counsel. Chicago & A. B. Co. v. Bobbins, 159 111. 598, rev 'g 54 111. App. 611. Additional instructions may be submitted without notice to counsel. Illinois Cent. E. Co. v. Ferrell, 108 111. App. 659. Rule in Ohio. In Ohio there is a, statutory provision as follows: "After the jury have retired for de- liberation, if there be a disagree- ment between them as to any part of the testimony, or if they desire to be informed as to any part of the law arising in the case, they may request the officer to conduct them to the court, where the information upon the point of law shall be given; and the court may give its recollec- tion a3 to the testimony on the point in dispute, in the presence of, or after notice to, the parties or their counsel" Code, section 270. (See Page & Adams, Ann. Ohio Gen. Code § 11452.) The decisions «under this statute are conflicting. In Campbell v. Beckett, 8 Ohio 211, it was held reversible error for the judge, during recess of court, in the absence of parties and counsel, and without notice to them, to give further instructions on a point of law. In Milius v. Marsh, 1 Disn. (Ohio) 512, and Chambers' Adm'r v. Ohio Life Insurance & Trust Co., 1 Disn. (Ohio) 327, it was held that the provision requiring the presence of or notice to counsel when the court states its recollection of the evidence to the jury does not apply to instructions on matters of law. "There is a clear distinction under section 270 of the Code, between further instructions in matter of law and a statement by the court of the evidence on a point." So, in Sea- grave v. Hall, 10 Ohio Cir. Ct. E. 395, it was hejd that a verdict should be set aside where the jury were recalled and given further instruc- tions, not upon questions of law, without any attempt to notify the parties or their counsel, none of whom were present. On the other hand, it was held in Moravee v. Buckley, 11 Wkly. Law Bui. (Ohio) 225, that an instruction by the court as to the form of the verdict, given on the jury's request after they had retired to deliberate upon their ver- dict, was an instruction on the law of the case, and, if given in the ab- sence of counsel, was error. In 524 Instetjctions to Jueies. [§ 224 posed of as follows: "Courts are armed with plenary au- thority to enforce the discharge of duty on the part of all their officers; and, besides a fitting and proper penalty on derelict counsel in the case supposed, they could, in cases when the necessity arose, require the defendant to procure other counsel, or make the appointment for him. If the absence of counsel resulted from a cause which would be a good ground for continuance, and it would not be proper to substitute other counsel, it were better that there should be a continuance, or at least a temporary postponement, than that one not skilled in the law, and who was largely igno- rant of his legal rights, and perhaps totally ignorant of the practice on which those rights rested, should lose a privi- lege, the value of which cannot be estimated." 87 Instructions to the jury after they have retired, in the absence of counsel, are objectionable, though no harm is done, for the reason that all proceedings of the court should be open and notorious, so that if a party is not satisfied with them he may take exceptions. 88 This objection, of course, does not apply in jurisdictions where instructions given after the jury retire are returned into court with the verdict, and are then allowed to be ex- cepted to. 89 Where the jury have been charged, and have retired, counsel may presume that no other instructions will be given without notice or an attempt to notify, and can reasonably Emery v. Whitaker, 2 Cin. Super. Assur. Co., 108 Ala. 180; Crabtree v. Ct. E. 36, it was held that where the Hagenbaugh, 23 111. 349, 76 Am. Dee. jury come out and ask further in- 694; Wade v. Ordway, 1 Baxt. struetions on the law, in the absence (Tenri.) 229. In Wade v. Ordway, of counsel, though no call for coun- ante, however, it was held that if sel is made at the courthouse door, the upper court could see that no if the counsel is sent for into every harm had been done, the trial court court room and office in the court- would not be reversed for its depar- house, it is sufficient, though it seemB ture from propriety, that even this is not necessary when 89 — Allen v. Aldrich, 29 N. H. 63; the court is in session. School Dist. No. 1 v. Bragdon, 23 87— Martin v. State, 51 Ga. 569. N. H. 507; Shapleigh v. White, 6 88 — Feibelman v. Manchester Fire N. H. 172. § 224] Instructions After Retirement of Jury. 525 object to instructions given in their absence, as they thereby lose the opportunity of asking for explanatory charges, if deemed necessary, 90 and of excepting to their refusal if the court declines to give them. 91 The impropriety of giving further instructions in the ab- sence of counsel, and without an attempt to notify them, is increased when the court is convened and the instructions given on a day during which no court business is usually transacted. ' ' When a court meets at a time so unusual, and without notice to parties, it is manifestly improper, and might work oppressively, to proceed in so important a mat- ter as that of charging a jury without the knowledge or presence of a party or of his counsel. ' ' ° 2 It must depend largely on circumstances as to what notice will be sufficient, and much must be left to the discretion of the trial judge. It has been'held a sufficient notice to call the attorneys at the courthouse door, or at any place where witnesses are usually called. 93 Where, before giving additional instructions, the court sends officers to look for counsel, the court may proceed in their absence, 94 particularly if the party represented by the absent counsel is present. 95 And it is, of course, proper to give further instructions to the jury at their request, -in the absence of counsel, where they have been duly notified that further instructions will be given, and neglect or refuse to attend. 96 90— Kuhl v. Long, 102 Ala. 569; 47 Ala. 498; Collins v. State, 33 Ala. Wade v. Ordway, 1 Baxt. (Tenn.) 434, 73 Am. Dec. 426. 229. ' California. People v. Mayes, 113 91— Feibelman v. Manchester Fire Cal - 618 > 45 Pae - 86 °- Assur. Co., 108 Ala. 180. Louisiana. State v. Dudoussat; 47 La. Ann. 996. 92 — Davis v. Fish, 1 G. Greene (Iowa) 410. The additional instruc- Ohio. Preston v. Bowers, 13 Ohio St. 1, 82 Am. Dec. 430. tions in this case were given on m„„„„„^ -r, i. oj. ^ » T s Tennessee. Dobson v. State, 5 Lea Sunday. 277 S3— McNeil v. State, 47 Ala. 498; 95— People v. Mayes, 113 Cal. 618, Dobson v. State, 5 Lea (Tenn.) 277. 45 p a c. 860. 94-^-Alabama. McNeil v. State, 96— Cook v. Green, 6 N. J. L. 109. 526 Instbuctions to Juries. ' [§224 It has also been held, that re-reading a portion of the charge already given in the absence of counsel is not within the rule, and that error cannot be assigned thereto. 97 In some cases the giving of additional instructions in the absence of counsel, and without attempting to notify them, has not been held error warranting reversal, if it was appar- ent that no prejudice resulted. 98 But usually in both civil and criminal cases the giving of such additional instructions is considered reversible error, 99 and it has been said that additional instructions, given in the absence of counsel, and at the request of the jury, will be presumed important, if the contrary is not shown, from the fact that the jury have asked for them. 1 It has also been held that a constitutional provision guar- antying the right to prosecute a cause by counsel is violated by the giving of instructions in the absence of counsel and the reviewing court cannot "inquire, in such a case, what instructions were given by the court to the jury, — whether they were correct or incorrect,, prejudicial or otherwise. We cannot be informed of their nature or effect by lawful and constitutional methods. The counsel not being present to observe the proceedings of the court, and learn for them- selves what transpired, and, by their advice and counsel, it may be, give shape to the action of the court, the plaintiff can have no just and fair representation — indeed, no consti- tutional representation by counsel — in making up the record for the presentation of the illegal proceedings to this court for review. ' ' 2 97 — People v. La Munion, 64 Mich. Long, 102 Ala. 569; McNeil v. State, 709. 47 Ala. 498; People v. Trim, 37 Cal. 98 — Karner v. Kansas City Ele- 274; Eeidman v. Gulnac, 5 Cal. 148; vated E. Co., 82 Kan. 842, 109 Pac. People v. Cassiano, 30 Hun (N. Y.) 676; Smith v. Kelly, 43 Mich. 390; 388; State v. Davenport, 33 La. Ann. Biggs v. Gurganus, 152 N. C. 173; 231; State v. Frisby, 19 La. Ann. Wade v. Ordway, 1 Baxt. (Tenn.) 143. 229. 1 — Bedman v. Gulnac, 5 Cal. 148. 99 — Feibelman v. Manchester Pire 2— Feibelman v. Manchester Fire Assur. Co., 108 Ala. 180; Kuhl v. Assur. Co., 108 Ala. 180. § 225] Instructions After Betirement or Jury. 527 § 225. Presence of accused in criminal cases. It is a familiar rule that in all criminal cases the defendant has the right to be present in person throughout every stage of the trial. 3 The court cannot give further instructions to the jury after their retirement, except in the presence of the defend- ant, 4 unless he has absconded. 5 It is the duty of the court to see that defendant is present when any instructions are delivered to the jury, 6 the rule being that prejudice will be presumed without inquiring into the correctness of the instructions, 7 and it has almost invariably been held a ground for reversal to deliver any further instructions in the absence of the defendant, 8 although there are decisions to the contrary. 9 If the judge recharges the jury without verifying for him- self the defendant's presence, and it afterwards appears that the prisoner was not present, but was in an adjoining room, in custody of an officer, and did not know that the jury were being recharged, and knowledge did not come to 3 — Bonner v. State, 67 Ga. 510; State v. Dry, 152 N. C. 813. As to exception on trial for misdemeanor see State v. Waymire, 52 Ore. 281, 21 L. R. A. (N. S.) 56n, 132 Am. St. Rep. 699, 97 Pae. 46; State v. Rabens, 79 S. C. 542. 4 — Alabama. Johnson v. State, 100 Ala. 58; Cooper v. State, 79 Ala.. 54. Colorado. Dekelt v. People, 44 Colo. 525, 99 Pao. 330. Georgia. Wilson v. State, 87 Ga. 583; Bonner v. State, 67 Ga. 510; Wade v. State, 12 Ga. 25. Illinois. Rafferty v. People, 72 111. 37. Missouri. State v. Miller, 100 Mo. 606. New York. Maurer v. People, 43 N. Y. 1. Ohio. Hulse v. State, 35 Ohio St. 429; Jones v. State, 26 Ohio St. 208; Kirk v. State, 14 Ohio 512. Texas. Benavides v. State, 31 Tex. Cr. App. 173, 37 Am. St. Rep. 799. But see, Washington v. State, 56 Tex. Cr. App. 195. 5— Hulse v. State, 35 Ohio St. 429. 6— Wilson v. State, 87 Ga. 583. See Dekelt v. People, 44 Colo. 525, 99 Pae. 330. 7— Jones v. State, 26 Ohio St. 208. 8 — See eases already cited in this section. 9— Rafferty v. People, 72 111. 37; Washington v. State, 56 Tex. Cr. App. 195. But see State v. Steven- son, 64 W. Va. 392, 19 L. R. A. (N. S.) 713. 528 Instructions to Juries. [■§ 225 him until after such recharge was concluded, it is cause for a new trial. 10 On a trial for murder, where the jury returned into court and asked' questions as to what had been the evidence on a particular point, it was held reversible error to give the requested information in the absence of the accused. 11 It seems, however, that the defendant may waive his right to be present when additional instructions are given, 12 but the presence of counsel at time of giving instructions, and his failure to object, will not waive the absence of the ac- cused. 13 It has also been held that the irregularity of charging in the defendant's absence is not cured by the presence of his counsel at the giving of such additional, instructions, and his failure to make objections. 14 10— Wilson v. State, 87 Ga. 583. Maurer v. People, 43 N. Y. 1; Jones 11— Maurer v. People, 43 N. Y. 1. v. State, 26 Ohio St. 208. 12— Benavides v. State, 31 Tex. 14 — Jones v. State, 26 Ohio St. Cr. App. 173, 37 Am. St. Rep. 799. 208. 13— Bonner v. State, 67 Ga. 510; CHAPTER XX. Withdrawal or Modification op Instructions. § 226. Right to withdraw or modify instructions. § 227. Time of withdrawal or modification. § 228. Sufficiency and effect. § 229. At request of parties. § 226. Right to withdraw or modify instructions. The modification of requested instructions has already been considered. 1 In addition it may be stated that where erroneous instruc- tions have been given to the jury, it is well settled that the court may, at any time before verdict, either of its own motion or at the request of parties, withdraw or amend and correct such instructions. 2 The court is not bound to modify, limit or qualify errone- ous instructions, 3 but it has the power to do so. 4 1— See §§ 190 et seq., ante. New York. Greenfield v. People, 2 — Alabama. Smith v. Maxwell, 85 N. Y. 91; Eggler v. People, 56 N. 1 Stew. & P. 221. Y. 642. Georgia. Pelham Mfg. Co. v. 3 — Cunningham v. State, — Tex. Powell, 6 Ga. App. 308. Cr. App. — , 166 S. W. 519; Ramm v. Indiana. Chesapeake Stevedoring Hewitt-Lea Lumber Co., 49 Wash. Co. v. Hufnagel, 120 Ind. 53; Hall 263, 94 Pac. 1081. v. State, 8 Ind. 439; Broadstreet v. 4 — Cunningham v. State, — Tex. McKamey, 41 Ind. App. 272. , Cr. App. — , 166 S. W. 519. x Iowa. Renner v. Thornburg, 111 The court may cure an error by Iowa 515. withdrawing, explaining, or correct- Maryland. United Rys. & Elec. ing an instruction. United Rys. & Co. v. Carneal, 110 Md. 211; Sittig Elec. Co. v. Carneal, 110 Md. 211; v. Birkestack, 38 Md. 158; Golds- State v. Hood, 63 W. Va. 182, 15 L. borough v. Cradie, 28 Md. 477. R. A. (N. S.) 448, 129 Am. St. Rep. Minnesota. Holland v. Sheehan, 964. 106 Minn. 545. (529) Blashfield Vol. 1—34 530 Instructions to Juries. [§ 226 Jurymen are intelligent men and can understand direc- tions of the judge and have capacity not to be influenced by an instruction afterwards eliminated from the case. 5 A modification in accordance with the ordinary precau- tion of trial courts to avoid any invasion of the province of the jury cannot be complained of 6 and where an instruction is good as an abstract proposition of law, but as applied to the concrete case may tend to mislead the jury, it is not error to so modify the language as to make it cover the case presented. 7 The court may recall the jury and withdraw an instruc- tion, though a part of it is proper, if that part of it which is proper has been embraced in an instruction given, 8 and there is no serious error where an improper instruction is read to the jury but subsequently withdrawn. 9 § 227. Time of withdrawal or modification. Ordinarily the judge has authority at any time before the jury is discharged, to withdraw erroneous instructions, 10 and it has been held that the trial court may amend instruc- tions during the progress of arguments of counsel, if abund- ant time remains for the discussion to the jury of the effect of such amendments. 11 § 228. Sufficiency and effect. A judge, other than the jtidge who presided at the trial, 5 — State v. Hood, 63 W. Va. 182, binding contract. St. Louis Maple 15 L. E. A. (N. S.) 448, 129 Am. St. & Oak Flooring Co. v. Knost, 148 Eep. 964. Mo. App. 563. 6 — Scott v. Sovereign Camp Wood- 9 — Mengelkamp v. Consolidated men of the World, 149 Iowa 562. Coal Co., 173 111. App. 370. 7 — Greer v. Arrington, 72 W. Va. Withdrawal of instructions with 693. directions to disregard held not 8 — Lautman v. Pepin, 26 Ind. prejudicial. Mengelkamp v. Con- App. 427. solidated Coal Co., 259 111. 305. To tell the jury that they must 10 — Broadstreet v. McKamey, 41 find a "binding contract" without Ind. App. 272; United Eys. & Elec. defining it would be error, and a re- Co. v. Carneal, 110 Md. 211. quested instruction is properly modi- 11 — Powers v. Com., 110 Ky. 386, fied by stating what constitutes such 53 L. E. A. 245. § 228] WlTHDEAWAL OB MODIFICATION OF INSTRUCTIONS. 531 and who gave the instructions, may recall the jury, and with- draw certain erroneous instructions, if he does so at the request of the judge who gave them, and if he has jurisdic- tion. 12 The giving of a fatally erroneous instruction can only be cured by a plain withdrawal of the instruction 13 since, un- less the jury are made to understand clearly that the instruc- tion is not to be considered, the error is not obviated. 14 But, ordinarily the court may orally withdraw instruc- tions, 15 and it is proper to withdraw an instruction by re- reading it and telling the jury not to follow it. 16 Where, in a criminal case, an instruction goes too far in making inferences from facts which the jury may find to have been proven, but the court withdraws the instruction, and limits his statement to the proposition that the supposed 12 — Renner v. Thornburg, 111 Iowa 515. In this case, however, some stress was laid upon the fact that the manner of withdrawal did not result in any prejudice, and that the objection was not raised in the lower court. 13 — Central of Georgia It. Co. v. Ray, 133 Ga. 126; Pelham Mfg. Co. v. Powell, 6 Ga. App. 308; Lower v. Franks, 115 Ind. 334. Generally, as to the sufficiency of the withdrawal of instructions, see Eldridge v. Hawley, 115 Mass. 410; New Albany Woolen Mills v. Meyers, 43 Mo. App. 124; Galino v. Fleisehmann Eealty & Construction Co., 130 App. Div. (N. Y.) 605. 14 — Wenning v. Teeple, 143 Ind. 189; McCrory v. Anderson, 103 Ind. 12; Eldridge v. Hawley, 115 Mass. 410; Schattler v. Daily Herald Co., 162 Mich. 115; New Albany Woolen Mills v. Meyers, 43 Mo. App. 124; Driggs v. Phillips, 103 N. Y. 77; Greenfield v. People, 85 N. Y. 91; Leonard v. Collins, 70 N. Y. 90; Chapman v. Erie Ry. Co., 55 N. Y. 579. 15— Bochat v. Knisely, i44 111. App. 551; Chicago & E. I. R. Co. v. Zapp, 110 111. App. 553, aff'd 209 111. 339. An oral withdrawal of an instruc- tion that has been considered by the jury has the effect of instructing that it does not state the law. Daily v. Boudreau, 231 111. 228. It is not necessary in withdraw- ing an instruction that the court should reduce to writing his state- ment in regard to the same. Robin- son v. State, — Ind. — , 106 N. E. 533. Orally withdrawing all instructions and directing the jury to find a de- fendant not guilty is a violation of a statute requiring modifications in writing, but such error does not war- rant reversal if the verdict and judgment are correct. Daily v. Boudreau, 231 111. 228. 16— Skulimowski v. Deahl, 169 111. App. 355. 532 Instructions to Jubies. • [§ 228 facts, if proved, will be sufficient to warrant a finding of gujlty, the error in the first instruction is cured; 17 and a verbal withdrawal of a written instruction improperly stat- ing the elements of damage will cure the error therein con- tained. 18 Where the court gives the jury an instruction which is entirely abstract or irrelevant, it is not error afterwards, on request, to state to the jury the character of the instruc- tion. The error, if any, would be in giving the instruction in the first instance, and not in withdrawing it. 19 Though there may be cases in which the withdrawal of an erroneous instruction and telling the jury to disregard it will not remove the wrong impression on the minds of the jury, it will be presumed that a correction by the trial court, in its charge, of a proposition laid down in a former part of the charge, has been accepted by the jury as the law of the case. 20 Where erroneous instructions are given, the mere giving of other instructions, explanatory or contradictory thereof, does not cure the error. 21 Thus, if the court erroneously instructs the jury, as a "matter of law, that a certain material fact is as contended by plaintiff, * * * a subsequent charge * * * that the burden of proof is on plaintiff to show the said fact to be as claimed by him, and that on the evidence in the case it is a question for the jury whether it is so or not," does not cure the error. 22 17 — Com. v. Clifford, 145 Mass. 97. 21 — Alabama Consol. Coal & Iron See also, Sergeant v. Martin, 133 Pa. Co. v. Heald, 168 Ala. 626; Jones 122. v. Talbot, 4 Mo. 279; Anderson v. 18 — Yoakum v. Mettasch (Tex. Electric Park Amusement Co., 141 Civ. App.) 26 S. W. 129. Mo. App. 576. See also, § 24, ante. 19 — Carlock v. Spencer, 7 Ark. 12. 22 — Canfield v. Baltimore & O. E. 20— Goodsell v. Taylor, 41 Minn. Co., 46 N. Y. Super. Ct. 238. 207, 4 L. B. A. 673, 16 Am. St. Eep. 700. § 229] WlTHDEAWAL OB MODIFICATION OF InSTBUCTIONS. 533 § 229. At request of parties. A party to an action who has presented declarations of law may be allowed to withdraw them, where the other party submits no. declarations. 23 It is also held that, ' ' The court may withdraw a charge at the instance of a party in whose favor it is made. ' ' The other party can, if he sees proper, request the charge to be given to the jury at his instance. 24 The theory of the statute requiring the judge to write "Eefused" upon instructions refused is that frequently it is important for the jury to understand both what is and what is not the law of the case, and the judge cannot allow a party "to withdraw charges requested after the judge has declared his determination to refuse them. To allow a party to withdraw such refused charges would be to afford an opportunity to experiment with the court, and to deny the adversary party the benefit of having the jury take and consider them on their retirement, against the spirit and policy of the statute." 2B 23— Smith v. Mayfield, 60 111. App. 24— Harrison v. Powell, 24 Ga. 530. 266. 25— Eedus v. State, 82 Ala. 53. CHAPTER XXI. Instructions as to Duty of Jueoks to Agree Upon Verdict. § 230. Propriety of instructions as to duty of jurors to agree. § 231. Instructions urging jurors to agree. § 232. Instructions tending to coerce jury into agreement. § 233. Instructions requiring jurors to reconcile differences of opinion. § 234. Statements' as to length of time jury will be kept together. § 235. Instructions tending to encourage disagreement. § 236. Directing jury to compromise. §230. Propriety of instructions as to duty of jurors to agree. It is clearly the duty of the jury to arrive at a verdict and to counsel together in an effort to do so, and an admoni- tory instruction upon such duty is proper. 1 A charge that there must be. unanimity as the basis for the rendition of a verdict is correct, 2 and it is not improper to impress upon the jury that the law does not require that they be absolutely certain of the correctness of their verdict, so that they can guaranty such correctness. 3 In case of an announcement by the jury that they are un- able to agree on a verdict, the trial court is- vested with a large discretion in the matter of instructions to the jury on the subject of agreement, and, unless this discretion is abused, the reviewing court will not interfere. 4 § 231. Instructions urging jurors to agree. As a general rule, it is proper for the trial judge to urge the jury to reach a verdict if nothing like coercion takes 1 — People v. Whitlow, 24 Cal. App. port v. Citizens ' Nat. Bank, 101 1, 139 Pac. 826. Iowa 530, 63 Am. St. Rep. 399; 2 — Hooten v. State, 9 Ala. App. 9. Dover v. Lockhart Mills, 86 S. C. 3— State v. Tedder, 83 S. C. 437. 229; Giese v. Schultz, 69 Wis. 526. 4 — German Sav. Bank of Daven- (534) § 231] Duty of Jury to Ageee Upon Verdict. 535 place, 5 and the judge may express his desire that they will be able to agree on further consideration of the case, 6 or state that it is the duty of the jury to agree upon a verdict, if that is possible. 7 The trial judge may detail to the jury the ills attendant on a disagreement and the importance of coming to an agreement, 8 and he may state the reasons why it is important that they shall reach an agreement, as, for instance, that the case had been long pending, exhaustively tried, 9 and that a 5 — Dover v. Lockhart Mills, 86 S. C. 229; State v. Jones, 86 S. C. 17. e-^Karner v. Kansas City El. R. Co., 82 Kan. 842, 109 Pac. 676; Com. v. Kelley, 165 Mass. 175; Kelly v. Emery, 75 Mich. 147. 7 — Highland Foundry Co. v. New York, N. H. & H. R. Co., 199 Mass. 403; Jackson v. State, 91 Wis. 253. 8— St. Louis, I. M. & S. R. Co. v. Carter, 111 Ark. 272, 6 N. C. C. A. 776. The trial judge may admonish tha jury of the importance and necessity of agreeing, and urge them to make an attempt to arrive at a verdict. Arkansas. Jackson v. State, 94 Ark. 169. Connecticut. Wheeler v. Thomas, 67 Conn. 577; State v. Smith, 49 Conn. 376. Georgia. Allen v. Woodson, 50 Ga. 53. Indiana. Krack v. Wolf, 39 Ind. 88. Iowa. Niles v. Sprague, 13 Iowa 198. Kansas. Karner v. Kansas City El. R. Co., 82 Kan. 842, 109 Pac. 676; McDonald v. Richolson, 3 Kan. App. 235, 45 Pac. 95. Maine. Cowan v. Umbagog Pulp Co., 91 Me. 26; State v. Rollins, 77 Me. 381. Michigan. Kelly v. Emery, 75 Mich. 147. Missouri. State v. Pierce, 136 Mo. 34. North Carolina. Warlick v. Plonk, 103 N. C. 81. Oregon. State v. Hawkins, 18 Ore. 476, 23 Pac. 475. South Carolina. Dover v. Lock- hart Mills, 86 S. C. 229. Tennessee. East Tennessee & W. N. C. R. Co. v. Winters, 85 Tenn. 240; Taylor v. Jones, 2 Head 565. Texas. Muckleroy v. State (Tex. Cr. App.) 42 S. W. 383. Vermont. State v. Gorham, 67 Vt. 371. Wisconsin. Jackson v. State, 91 Wis. 267; Giese v. Schultz, 69 Wis. 526. Statements as to the importance of a case, its expense, and the duty of jurors to agree held no more than an admonition to return a verdict, as the court did not express any opinion as to the weight of the evi- dence, nor change the instructions given, nor urge the jurors to yield their individual convictions as to the result of the case. Jackson v. State, 94 Ark. 169. 9 — Connecticut. Clinton v. How- ard, 42 Conn. 310. Georgia. Allen v. Woodson, 50 Ga. 53. 536 Instructions to Juries. [§ 231 new trial would entail a large additional expense; or that there had already been two trials; 10 or that "the case has already been tried once, and the amount involved is not very large, and the parties cannot afford to litigate it forever, and the county cannot afford to have them do it. You see, it takes some time to try the case, and I hope you will be able to arrive at a conclusion, and settle the facts in the case, at least." 11 But an instruction telling the jurors, in effect, that they are on oath bound to reach some sort of a verdict, and that to vote time after time in accordance with the first ballot cast is reprehensible, is improper. 12 The judge should not by word or act intimate that they' should arrive at a verdict which ia not the result of their free and voluntary opinion, and which is not consistent with, their conscience/ 3 § 232. Instructions tending to coerce jury into agreement. The trial judge should not by threat or entreaty attempt to influence the jury to reach a verdict. 14 Any statement by the court which has a tendency to coerce the. jury into an agreement, or which may impress the jury with the belief that the judge wants the case decided for a Iowa. Frandsen v. Chicago, R. I. 13 — St. Louis, I. M. & S. R. Oo. v. & P. R. Co., 36 Iowa 376; Niles v. Carter, 111 Ark. 272, 6 N. C. C. A. Sprague, 13 Iowa 198. 776. Kansas. Karner v. Kansas City It is proper to instruct that the El. R. Co., 82 Kan. 842, 109 Pac. 676. jurors should not yield any con- Michigan. Stoudt v. Shepherd, 73 scientious views founded on the evi- Mich. 588; Pierce v. Rehfuss, 35 dence. Warlick v. Plonk, 103 N. C. Mich. 53. 81. Wisconsin. Hannon v. State, 70 14 — St. Louis, I. M. & S. R. Co. v. Wis. 448. Carter, 111 Ark. 272, 6 N. C. C. A. 10 — Niles v. Sprague, 13 Iowa 198. 776; Highland Foundry Co. v. New 11— Kelly v. Emery, 75 Mich. 147. York, N. H. & H. R. Co., 199 Mass. 12 — People v. Watson, 165 Cal. 403; Mar v. Shew Pan Qui, 108 645, 133 Pac. 298. See also, High- Minn. 441, 133 Am. -St. Rep. 460; land Foundry Co. v. New York, N. State v. Jones, 86 S. C. 17; State H. & H. R. Co., 199 Mass. 403. v. Tarlton, 22 S. D. 495. § 232] Duty of Jury to Agree TJpon Verdict. 537 particular party to the suit, cannot be sustained, and will, in general, be r.eversible error. 15 It is therefore error to give an instruction censuring jurors for not yielding to the majority. 16 It is also error to tell the jury that the. case had become "an incubus upon the business of the court," that "they must decide it," and that "it is no credit to a man, merely because he has an opinion, to stubbornly stick to it. ' ' 1T So it has been held that where the judge declares that he must have a verdict in the case, on the jury's stating the third time their inability to agree, and that he has reasons to believe that some of the jury have been tampered with, such remarks will be considered sufficient ground for new trial. 18 The words ' 'you dare not go beyond that jury box in con- sidering the testimony offered" have been held not objec- tionable, it being the intention of the trial judge to call attention to the jury's duty, 19 and an instruction in a murder case as to the guilt of the accused, containing the words ; 15 — See Georgia R. Co. v. Cole, 77 can retire and see if you cannot Ga. 77; German Sav. Bank of Daven- agree upon the amount." This was port v. Citizens' Nat. Bank, 101 Iowa held error warranting a new trial on 530, 63 Am. St. Rep. 399. In the a recovery by plaintiff, on the ground former case, which was an action for that the jury might have under- personal injuries, the jury disagreed, stood the court as favoring a finding and, in answer to ja question of the for plaintiff, and because his remark court, stated that they differed about might have induced some of them to the amount of damages. The court give up opinions which they might said: "Gentlemen, I cannot aid you have entertained in favor of the de- in that, as I know of, in any way fendant. further than to say that, upon that 16 — Mahoney v. San Francisco & matter, the jury ought to make a S. M. Ry. Co., 110 Cal. 471, 42 Pac. very earnest effort to agree, — to 968, 43 Pae. 518; Highland Foun- reconcile conflicting opinions as to dry Co. v. New York, N. H. & H. R. amounts. I merely give you that as Co., 199 Mass. 403; Stoudt v. Shep- advice of the court. You must make herd, 73 Mich. 588. an effort to agree upon the amount. 17 — Randolph v. Lampkin, 90 Ky. Of course, a juror ought not to give 551, 10 L. R. A. 87. up his convictions if they are so 18 — State v. Ladd, 10 La. Ann. strong, but there ought to be an 271. effort to come to an agreement. You 19 — State v. Mills, 79 S. C. 187. 538 Instructions to Juries. [§ 232 "it would be your duty to have the manhood to say so," if the accused was guilty, held not objectionable as the trial judge was merely endeavoring to have the jury do their duty. 20 Where the evidence is of so conclusive a character' that the court may direct a verdict for one of the parties, it is not error for the court to tell one of the jurors that it is his duty to agree with the other jurors in finding a verdict for such party. 21 , , § 233. Instructions requiring jurors to reconcile differences of opinion. The judge may warn the jury not to be stubborn, to lay aside all pride of opinion, and to consult with each other and give due regard and weight to the opinion of their fellow-jurors. 22 Thus, it is proper to instruct that the jury should reason together and talk over the existing differences, if any, and harmonize them, if possible, 23 and examine such differences in a spirit of fairness and candor ; 24 that they should lay aside all pride of judgment, 25 and not stand out in an unruly and obstinate way through mere stubborness; 26 or that the jury are, in the eye of the law, as capable as any jury will ever be of reaching a verdict, or to direct them to return to 20 — State v. Gallman, 79 S. C. 229. gardless of anything that may be 21 — W. B. Grimes Dry-Goods Co. said by the other jurymen. Jackson v. Malcolm, 7 C. C. A. 670, 58 Fed. v. State, 91 Wis. 257. See also, Whit- 670. . ' man v. Morey, 63 N. H. 458; Ahearn 22— St. Louis, I. M. & S. E. Co. v. v. Mann, 60 N". H. 472. Carter, 111 Ark. 272, 6 N. C. C. A. 23— Odette v. State, 90 Wis. 258. 776. And see, Caldwell v. Duncan, 24 — Frandsen v. Chicago, E. I. & 87 S. C. 331. P. E. Co., 36 Iowa 372. An instruction may be given that 25 — Frandsen v. Chicago, E. I. & it is the duty of each juryman to P. E. Co., 36 Iowa 372; Warlick v. give careful consideration to the Plonk, 103 N. C. 81; Odette v. State, views of his fellow-jurors, and that 90 Wis. 258. he should not shut his ears and 26 — Jackson v. State, 91 Wis. 253; stubbornly stand upon the position Odette v. State, 90 Wis. 258. which he may have first assumed, re- § 233] Duty of Juby to Agree Upon Vekdiot. 539 their room and make an honest effort to agree, and to tell them that it is the opinion of the court that, if they will fol- low the rules laid down by the court, they will have no trou- ble in agreeing; 2T or that "this case is.submitted to you for decision, and not for disagreement. I think I will let you give it a further trial." 2S In a leading case on this subject, an instruction which, in effect, told the jury that if any of the jury differed in their views of the evidence from a large number of their fellows, such difference of opinion should induce the minority to doubt the correctness of their own judgments and lead them to a re-examination and closer scrutiny of the facts in the case, for the purpose of .revising and reeonsidering their preconceived opinion, was held not improper, and that such' instruction was not calculated to mislead the jury. 29 Where the court stated that he had no knowledge as to how the jury stood; that it might be a proper thing for a minority to consider with seriousness whether they might be wrong and a majority right; that it is probable some- times a minority was right and a majority wrong; that no juror should yield his well-grounded convictions or violate his oath; that if upon further consideration a juror cannot conscientiously yield, of course he ought not to do so, and expressed the hope that under the views suggested a ver- dict would be reached agreeable to all of them, the state- 27— Parker v. Georgia Pae. By. Co., Ed. 528. See also, State v. Egland, 83 Ga. 539. 23 S. D. 323, 139 Am. St. Eep. 1066. 28 — German Sav. Bank of Daven- In Highland Foundry Co. v. New port v. Citizens' Nat. Bank, 101 York, N. H. & H. E. Co. 199 Mass. Iowa 530, 63 Am. St. Rep. '399. 403, the court said that the Tuey 29 — Com. v. Tuey, 8 Cush. (Mass.) case, ante, was regarded by the pro- 1, approved in State v. Smith, 49 fession as going to nearly if not Conn. 376; Gibson v. Minneapolis, quite the extreme limit, and sus- St. P. & S. S. M. By. Co., 55 Minn. tained an exception to an instruction 177, 43 Am. St. Bep. 482; Allen v. which the court held went further United States, 164 U. S. 492, 41 L. than the instruction in the Tuey case. 540 Instbuctions to Jueies. [§ 233 ments were not objectionable as a criticism of the jury and an expectation that a verdict would be readily rendered. 30 § 234. Statements as to length of time jury will be kept together. According to some decisions, it is error to tell the jury that the court will not discharge them until they agree upon a verdict, or until the end of the' term, unless they sooner agree, 31 but other cases have taken the opposite view. 32 In one case it was held reversible error to tell the jury that the court would keep them together for four days unless they agreed; 3S and in another, that if the jury agreed by a certain time, they would be discharged ; if not, they would be kept together until they did agree. 34 So it was held error for the trial judge to say to the jury, ' ' If you cannot agree one way or another in as plain a state of facts as this is, — I don't say which way, — it is useless to try causes in courts of justice," and added that "he would not discharge them if they stayed till Saturday night. " 35 It is not improper, after telling the jury that common-law juries were kept together until they agreed, and that such rule has been mitigated in the United States, to tell the jury that they would have to remain together and could not separate until they agreed on a verdict. Such statement 30 — People v. Coulon, 151 Mich. guilty; that they were bound to do 200. Citing Tuey ease, ante, n 29. bo under the instruction of the court, 31 — Mar v. Shew Pan Qui, 108 and that, if they did not, they would Minn. 441, 133 ( Am. St. Eep. 460; be guilty of moral perjury. Chesapeake, O. & S. W. E. Co. v. 32— State v. Green, 7 La. Ann. Barlow, 86 Tenn. 537; Taylor v. 518; Hannon v. Grizzard, 89 N. C. Jones, 2 Head (Tenn.) 565; North 115. To the same effect, see Osborne Dallas Circuit Ey. Co. v. McCue v. Wilkes, 108 N. C. 651. (Tex. Civ. App.) 35 S. W. 1080. See 33— Terre Haute & I. E. Co. v. also, Perkins v. State, 50 Ala. 154. Jackson, 81 Ind. 19. See also, In- In this case the court told the jury gersoll v. Town of Lansing, 51 Hun that he would keep the court open (N. Y.) 101. until they reached an agreement, but . 34 — State v. Hill, 91 Mo. 423. he further told them that they had 35 — 'Nash v. Morton, 48 N. C. 3. nothing to do but to find defendant § 236] Duty of Jury to Agebe Upon Veedict. 541 does not indicate a determination on the part of the court to keep the jury indefinitely until they should agree. 36 § 235. Instructions tending to encourage disagreement. It is not proper to give an instruction which has a tend- ency to restrain jurors from agreeing upon a verdict, and a request for such an instruction may be properly refused. 37 Accordingly an appeal to a jury not to surrender con- scientious convictions in order to arrive at a verdict has been held vicious, 38 and an instruction that no juror should consent to a verdict not meeting with his approval is improper. 39 A requested instruction that "no juror should consent to a verdict which does not meet with the approval of his own judgment and conscience after due deliberation with his fellow-jurors after fairly considering all the evidence admitted by the court and the law as given in the instruc- tions," is properly refused as tending to encourage and invite a disagreement. 40 § 236. Directing jury to compromise. While it is not improper to impress upon the jury that they need not be so certain of their verdict that they can guaranty its correctness, 41 the court should not direct the jury, either expressly or by implication, that they may ren- der a compromise verdict. 42 36 — State v. Saunders, 14 Ore. 300, 38 — Souleyret v. O 'Gara Coal Co., 12 Pac. 441. 161 111. App. 60. 37— San Antonio & A. P. Ey. Co. 39— Casey v. Kelley-Atkinson v. Choate, 22 Tex. Civ. App. 618. Const - C °-> 240 m - 416, aff'g 146 111. See also, Horton v. United States, Ap P' ^ ; ° ity of Evanst ™ *• Eich- 15 App. Cas. (D. C.) 310. ^n' l "' , ™ , r *^ * ' 40 — Mandel v. Bloomington & N. Instructions tending to encourage Eailwav & Light 0o 188 IU . App . disagreement should not be given. 228 Chicago & E. I. E. Co. v. Eains, 203 41— See § 231, ante. ' 111. 417, aff'g 106 111. 539; Chicago s 42— Arkansas. Southern Ins. Co. City Ey. Co. v. Phillips, 138 111. App. v . White, 58 Ark. 277. 438. Indiana. Eichardson v. Coleman, 542 Instetjctions to Jubies. [§ 236 The law contemplates that they shall, by their decisions, harmonize their vote, if possible, but not that they shall compromise, divide or yield for the mere purpose of agree- ment. 43 Accordingly, it is error to instruct "that the law which requires unanimity on the part of the jury to render a ver- dict expects and will tolerate reasonable compromise and fair concessions;" 44 or "that many things juries were au- thorized to compromise, such as amounts; that very seldom twelve men went into the jury room with the same notions as to amounts, and compromises were necessary;" 45 or that "no number of minds can agree upon a multitude of facts, such as this case presents, without some yielding of the judgment of individuals upon the evidence, some deference to the opinion of others, — without what some might call a compromise of diff ererft views ; " 46 or tb&t ' ' I can 't take any such statement as that, gentlemen; you must get together upon a matter of this kind. No juror ought to remain entirely firm in his own conviction, one way or another, until he has made up his mind, beyond all question, that he is necessarily right, and the others are necessarily wrong, " 47 or that, "if you can't each get exactly what you want, get the next best thing to it. ' ' 48 131 Ind. 210, 31 Am. St. Eep. 429; Pennsylvania. Boden v. Irwin, 92 Clem v. State, 42 Ind. 420, 13 Am. Pa. St. 345. Eep. 369. 43 — Goodsell v. Seeley, 46 Mich. Massachusetts. Highland Foun- 623, 41 Am. Eep. 183. dry Co. v. New York, N. H. & H. 44— Eichardson v. Coleman, 131 E. Co., 199 Mass. 403. Ind - 210 > 31 Am " St - Ee P- 429 ' Michigan. Goodsell v. Seeley, 46 Mich. 623, 41 Am. Eep. 183. Missouri. Edens v. Hannibal & 45— Edens v. Hannibal & St. J. E. Co., 72 Mo. 212. 46— Clem v. State, 42 Ind. 420, 13 Am. Eep. 369. St. J. E. Co., 72 Mo. 212. 47— Cranston v. New York Cent. New York. Cranston v. New York & h. Eiver E. Co., 103 N. Y. 614. Cent. & H. Eiver E. Co., 103 N. Y. 48— Southern Ins. Co. v. White, 58 614. . Ark. 277. . CHAPTER XXII. Instbuctions as to Vbbdict; Special. Vekdict ob Findings, AND InTEEBOGATOBIES. § 237; Form of verdict. § 238. Instructions which are proper where- special verdict is directed. § 239. * Unnecessary or improper instructions where special verdict or inter- rogatories are submitted. § 237. Form of verdict. Oral directions as to the form of a verdict have been held not within the rule requiring written instructions, 1 and a jury may be orally instructed to find damages where they return a verdict without such. finding. 2 On a prosecution for incest, where there is no evidence which would warrant a finding by the jury of any verdict other than guilty or not guilty, the court need not submit forms of -verdicts as to other offenses. 3 An instruction as to the form of a verdict in a homicide case, stating that if the accused shall be found guilty he shall be imprisoned in a certain penitentiary, is erroneous in stating the place of imprisonment but such words may be regarded as mere surplusage, and the error is harmless. 4 1 — Illinois Cent. E. Co. v. Wheeler, 2 — Chapman v. J. E. Salfisberg & 149 111. 525, aff'g 50 III. App. 205; Co., 104 111. App. 445. Economy Light & Power Co. v. Hil- 3 — State v. Aker, 54 Wash. 342, ler, 113 111. App. 103, aff'd 211 111. 18 Ann. Cas. 972, 103 Pac. 420. 568. 4 — People v. Stein, 23 Cal. App. As to the propriety of a court 's 108, 137 P«c. 271. instruction as to the form of the verdict, see Covington v. Clemmons, 61 Ela. 151. (543) 544 Instructions to Jtjkies. - [§ 238 § 238. Instructions which are proper where special verdict is directed. Where special interrogatories are submitted, the court should instruct that it is the duty of the jury to answer them, 5 and to do so in accordance with the burden of proof and preponderance of the evidence. 6 The court may and should state ' ' the matter put in issue by the pleadings, * * * the rules for weighing or reconciling conflicting testimony, with whatever else may be necessary to enable the jury clearly to comprehend the subjects" to be comprehended by their special verdict, 7 and the court may also state the form of the verdict to be ren- dered, and the general duties of the jurors. 8 § 239. Unnecessary or improper instructions where special verdict or interrogatories are submitted. When the jury are required to find simply the facts, entirely independent of their legal bearings, the court need not give general instructions as to the law of the case, nor state the rules of law by which certain facts are to be weighed. 9 "There is * * * neither propriety nor fitness that the court should, either upon its own motion or at the re- quest of either party, give any general instructions as to the 5 — Woollen v. Whitacre, 91 Ind. 9 — Louisville, N. A. & C. Ey. Co. 502; Bedford v. Spokane St. Ey. Co., v. Buck, 116 Ind. 566, 2 L. E. A. 9 Wash. 55, 36 Pae. 1085. 520n, 9 Am. St. Eep. 883; Johnson 6 — Kansas Pac. Ey. Co. v. Peavey, v. Culver, 116 Ind. 278; Woollen v. 34 Kan. 472, 8 Pao. 780; Harriman Wire, 110 Ind. 253; Louisville, N. A. v. Queen Ins. Co., 49 Wis. 71. & C. Ey. Co. v. Frawley, 110 Ind. 18; 7 — Woollen v. Wire, 110 Ind. 251; Indianapolis, P. & C. Ey. Co. v. Bush, Louisville, N. A. & C. Ey. Co. y. 101 Ind. 582; Toler v. Keiher, 81 Frawley, 110 Ind. 28; Louisville, N. Ind. 383; Sprinkle v. Taylor, 1 Ind. A. & C. Ey. Co. v. Balch, 105 Ind. App. 74; Ward v. Cochran, 18 C. C. 93; Toler v. Keiher, 81 Ind. 388. A. 1, 71 Fed. 127. A similar situa- 8 — Covington v. Clemmons, 61 tion arises in the case of issues out Fla. 151; Louisville, N. A. & C. Ey. of chancery. See ch. XXIII, Co. v. Frawley, 110 Ind. 28;' Toler v. Keiher, 81 Ind. 383. § 239]- Veedicts, Findings and Interrogatories. 545 law of the case. The jury should be left entirely free to find the facts material to the several issues, without instruc- tion as to whether the law will declare one way or the other, upon any fact or state of facts which may he found." 10 . The law must be applied by the court to the facts after they are found by the jury. 11 It is, of course, proper to refuse requests for such instruc- tions, 12 but the giving of them will not be reversible error; 13 and it makes no difference that they state the law incor- rectly, provided the trial court correctly applies the law to the facts. 14 Where special interrogatories are submitted to be an- swered by the jury in connection with their general verdict, it is error to instruct the jury that their answers should be consistent with the general verdict, 15 or each other, 16 since 10— Louisville, N. A. & C. Ey. Co. v. Frawley, 110 Ind. 28. An instruc- -tion that the special verdict must state whether plaintiff contributed to the injury by a slight want of ordinary care, which would be neg- ligence on plaintiff's part, is not open to the objection that it tells the jury the effect of their answer on plaintiff's right of recovery. Brunette v. Town of Gagen, 106 Wis. 618. 11 — Johnson v. Culver, 116 Ind. 278. 12 — Stayner v. Joyce, 120 Ind. 99; Louisville, . N. A. & C. Ey. Co. v. Frawley, 110 Ind. 18; Indianapolis, P. & C. Ey. Co. v. Bush, 101 Ind. 582. Compare Western TJ. Tel. Co. v. New- house, 6 Ind. App. 422, where it was held error "for the court to refuse proper instructions as to the meas- ure of damages, where it is the duty of the jury to assess damages, even though a special verdict is asked for, provided all the legal rules relative Blashfield Vol. 1—35 to the request for and submission of such instructions are complied with." See also, Burns v. North Chicago Soiling Mill Co., 60 Wis. 544. An instruction that if a certain fact is found to exist, the jury should find for the contestant in a will con- test case, is properly refused. TaT- bell v. Forbes, 177 Mass. 238. 13— Louisville, N. A. & C. Ey. Co. v. Buck, 116 Ind. 566, 2 L. E. A. 520n, 9 Am. St. Eep. 883; Johnson v. Culver, 116 Ind. 278; Louisville, N. A. & C. Ey. Co. v. Frawley, 110 Ind. 18. But see, Bhyner v. City of Menasha, 107 Wis. 201. , 14— Woollen v. Wire, 110 Ind. 253. 15— Coffeyville Vitrified Brick Co. v. Zimmerman, 61 Kan. 750, 60 Pac. 1064; Mechanics' Bank of Detroit v. Barnes, 86 Mich. 632. But see, Acton v. Fargo & M. St. E. Co., 20 N. D. 434. 16— St. Louis & S. F. E. Co. v. Burrows, 62 Kan. 89, 61 Pac. 439. 546 Instructions to Juries. [§ 239 it is the duty of the jury to answer each question in accord- ance with the preponderance of the evidence bearing thereon. 17 The court should not direct the jury how to answer the questions submitted under any given circumstances, since the object of submitting interrogatories would be thereby defeated. 18 Contra, Hoppe v. Chicago, M. & St. 18 — Beecher v. Galvin, 71 Mich. P. Ry. Co., 61 Wis. 357. 391; Maclean v. Scripps, 52 Mich. 17— St. Louis & S. y. R. Co. v. 214; Cole v. Boyd, 47 Mich. 98. Burrows, 62 Kan. 89, 61 Pac. 439. CHAPTER XXIII. Issues Out of Chancery. § 240. Submission of issues in general. § 241. Necessity and propriety of giving instructions. § 242. Rules governing instructions given. § 240. Submission of issues in general. The submission of issues to the jury out of chancery is discretionary, 1 and the chancellor may direct a verdict or dismiss the jury if satisfied to rest his decree upon the facts developed. 2 But, if an issue is directed out of chancery, the province of the jury is to weigh and consider the evidence and find according to its preponderance. 3 Any doubtful issue may be referred to the jury on a feigned issue, 4 but it is improper to refer an entire case, even when the parties desire it. 5 Issues of law may be submitted 6 and it has also been held that the question of mental capacity may be submitted. 7 Where the issue is not required to be submitted, the ver- dict is merely advisory. 8 The trial of a feigned issue is not equivalent to a trial by 1— Koch v. Story, 47 Colo. 335, 4— Fanning v. Bussell, 94 111. 386, 107 Pac. 1093; Heron v. Weston, 44 rev'g 2 111. App. 632. Colo. 379, 100 Pac. 1130; Keith v. 5— Milk v. Moore, 39 111. 584. Henkleman, 173 111. 137, aff'g 68 111. 6— Gunning v. Sorg, 113 111. App. App. 623; Kozacek v. Kozacek, 105 332 » afE ' d 2U m - 616 - 111. App. 180; Lawrence v. Lawrence, 7-Brown v. Miner, Frost & Hub- ao a X itn bard » 128 'Dl. 148, aff 'g 21 111. App. 60. 8 — Larson v. Glos, 235 111. 584; 2-DeGraff v. Manz, 251 111. 531. Biggerstaff V- B i ggerst afe, 180 111. See also, Larson v. Glos, 235 111. 584; m . Worthing v . HaU) 153 ln . App . Blood v. Sovereign Camp Woodmen 587 . Murray v. Snowder, 25 Okla. of World, 140 Mo. App. 526. ' 421, 106 Pac. 6^5; Carter v. Jeffries, 3 — Smith v. Newton, 84 HI. 14. 110 Va. 735; Pealer y. Grays Harbor (547) 548 Instructions to Juries. [§ 240 jury at law, 9 and the verdict on a feigned issue is merely- advisory 10 and may be disregarded. 11 When an issue is submitted and the jury disagrees, the chancellor may enter a decree without a re-reference. 12 § 241. Necessity and propriety of giving instructions. Since the verdict is merely advisory and the court is not controlled by it, 13 neither party has a right to insist that the court shall instruct the jury when an issue is submitted. 14 Error in giving or refusing instructions is immaterial, where the court adopts the^ findings of the jury and finds on all the issues, as the correctness of the finding may be tested by the evidence, and, if erroneous conclusions are drawn, the question may be presented on appeal. 15 , In some jurisdictions, however, it seems to be the prac- tice to instruct the jury, and certainly the court may, if it sees fit, give the jury instructions properly applicable to the issue submitted to them to be tried. 16 Boom Co., 54 Wash. 415, 103 Pae. 451. v. Olin, 4 Nev. 98, 97 Am. Dee. 513. 9 — Turnes v. Brenckle, 249 111. 394. In equity it is not proper practice 10 — Biehl v. Biehl, 247 HI. 475; for courts to give instructions on the Larson v. Glos, 235 111. 584; Blood law. Dominguez v. Dominguez, 7 v. Sovereign Camp Woodmen of Cal. 424; Swales v. Grubbs, 126 Ind. World, 140 Mo. App. 526. 107; Farmers' Bank v. Butterfield, 11— Hardy v. Dyas, 203 111. 211. 100 Ind. 230; White v. Black, 115 12— Hardy v. Dyas, 203 111. 211. Mo. App. 28. 13 — See § 240, ante. 15— Riley v. Martinelli, 97 Cal. 14— Branger v. Chevalier, 9 Cal. 575, 21 L. R. A. 33n, 33 Am. St. Bep. 353; Danielson v. Gude, 11 Colo. 87, 209, 32 Pac. 579; Hewlett v. Pilcher, 17 Pac. 283; Freeman v. Wilkerson, 85 Cal. 542, 24 Pac. 781; Sweetser v. 50 Mo. 554; Conran v. Sellew, 28 Dobbins, 65 Cal. 529, 4 Pac. 540. In Mo. 322; Blood v. Sovereign Camp Kellogg v. Krauser, 14 Serg. & B. Woodmen of World, 140 Mo. App. (Pa.) 137, 16 Am. Dec. 480, the court 526; Luce v. Barnum, 19 Mo. App. said: 359; Van Vleet v. Olin, 4 Nev. " Should there be a mistake in the 95, 97 Am. Dec. 5l3. "Where the admission or rejection of evidence, action is tried as an action at law, or in charging a jury, on a feigned and so treated by the court and par- issue, a writ of error lies. ' ' Quoted ties, it should, at least, be fairly sub- with approval in Brown v. Parkin- mitted to the jury, aaid the law cor- son, 56 Pa. 341. rectly stated to them." Van Vleet 16— Barth v. Eosenfeld, 36 Md. § 242] Issues Out of Chancery. 549 In Georgia, under a statute, parties are entitled to a jury in equity cases to the same extent as in an action at law, and accordingly the instructions in equity cases are subject to the same considerations as in actions at law, and the parties are entitled to them as of right. 17 § 242. Rules governing instructions given. Instructions upon the law of the whole case need not be given, for the jury do not find a general verdict and it is the province of the court to apply the law to the facts found. 18 Also, the instructions should not be general, as in an action at law, but should relate only to the determination of the questions of facts submitted. 19 No instructions should be given except those pertinent to the' issue, no matter how pertinent they may be to other questions in the case, not covered by the issues submitted, 20 and the instructions given should not change the issues submitted. 21 The verdict of the jury being merely advisory, the court may direct a verdict, even though the evidence is conflict- ing. 22 Errors in instructions which could not have affected the result are not ground for reversal. 23 604; Snouffer's Adm'r v. Hans- 20— Carlisle v. Foster, 10 Ohio 198. brough, 79 Va. 177. See also, the 21— Hoobler v. Hoobler, 128 111. following section. 645. — 17— Adkins v. Hutchings, 79 6a. 2 2— California. Galvin v. Palmer, 260; Doggett v. Simms, 79 Ga. 253; n3 Cal 46; 45 Pac m Neal v. Patten, 40 Ga. 363; Brown Missouri . Robinson v . Dryden 118 v. Burke, 22 Ga. 574; Shiels v. Stark, -. _„, ^ ,_.., _. ' ' n . ~ ' „i ' ~ , . ' Mo. 534; Hess v. Miles, 70 Mo. 203. 14 Ga. 429; Webb v. Robinson, 14 „ ..' ,. ' „ , r, me ™ ™ „ „ North Carolina. Ely v. Early, 94 Ga. 216; Mounce v. Byars, 11 Ga. j j> 180; Beall v. Beall, 10 Ga. 342. C ' L 18-Dominguez v. Dominguez, 7 Pennsylvania. Baldwin v. Taylor, Cal. 424; Swales v. Grubbs, 126 Ind. 166 Pa - St. 507. 107; Stickel v. Bender, 37 Kan. 457, Wisconsin. Pier v. Prouty, 67 Wis. 15 Pac. 580. 218. 19 — Farmers' Bank v. Butterfield, 23 — Snouffer's Adm'r v. Hans- 100 Ind. 229. brough, 79 Va. 177. CHAPTER XXIV. Instructions Permitting Jueoks to Use Personal Knowledge as Evidence. § 243. Rule in general. § 244. Instructions as to juror 's personal knowledge. § 245. View by jury of locus in quo. § 243.- Rule in general. The jury has the right to weigh the testimony and draw all reasonable deductions from it, warranted by their com- mon knowledge and experience with human affairs; 1 but the verdict rendered must be based on the evidence intro- duced at the trial, and the jury cannot take into consider- ation facts known to them personally but outside the evi- dence produced before them in court. 2 This rule is well established, although at common law the rule was otherwise. 3 If a party would avail himself of facts known to a juror, he must have him sworn and examined as other witnesses, so that his evidence, like that of other witnesses, may be first scrutinized as to its competency and bearing upon the issue, and for the further reason that the court and parties may know upon what evidence the verdict was rendered. 4 1 — Graysonia-Nashville Lumber Owen, 90 Ga. 265; Orcutt v. Nelson, Co. v. Carroll, 102 Ark. 460. 1 Gray (Mass.) 536; 1 Starkie, Ev. 2 — Close v. Samm, 27 Iowa 503. 449. See also, Murdock v. Sumner, 3 — 3 Bl. Comm. 374; 5 Bacon, Abr. 22 Pick. (Mass.) 156; Patterson v. 351; Orcutt v. Nelson, 1 Gray City of Boston, 20 Pick. (Mass.) 166; (Mass.) 536. Wharton v. State, 45 Tex. 2. 4 — Chattanooga, R. & C. R. Co. v. (550) § 244] Pebsonal Knowledge of Jueobs as Evidence. 551 § 244. Instructions as to juror's personal knowledge. An instruction permitting jurors, in weighing the evi- dence, to apply the knowledge and experience which they possess as intelligent men, is proper, since it does not permit them to use any peculiar or personal knowledge they may possess. 5 Accordingly, in a criminal prosecution, an instruction that "you will bring to bear upon the consideration of the evidence of this case, in addition, all that common knowl- edge of men and affairs which you as reasonable men have and exercise in the every day affairs of life," is not er- roneous. 6 And, an instruction that in considering damages, the jury may consider the facts proved in connection with their own knowledge and experience is not objectionable in not limit- ing the jury to such knowledge as men ordinarily po'ssess. 7 But, it is error to give instructions directing or permit- ting jurors to apply their own personal knowledge of the facts, 8 or of the character of the witnesses, in determining their verdict. 9 5 — Jenney Electric Co. v. Bran- 7 — Illinois Cent. B. Co. v. War- ham, 145 Ind. 314, 33 L. E. A. 395; ringer, 229 111. 91, aff'g 132 111. App. Sanford v. Gates, 38 Kan. 405, 16 301. Pac. 807. See also, Morrison v. 8 — Gibson v. Carreker, 91 Ga. 617; State, 42 Fla. 149. Chattanooga, E. & C. E. Co. v. Owen, Where a broken plank, which . 90 Ga. 265; Junction City v. Blades, caused the injury, was introduced in 1 Kan. App. 85, 41 Pac. 677; Doug- evidence, an instruction that the lass v. Trask, 77 Me. 35; Burrows jury were not restricted to the opin- v. Delta Transp. Co., 106 Mich. 582, ions of expert witnesses, but had the 29 L. E. A. 468. right to use their own intelligence, 9 — Pettyjohn v. Liebscher, 92 Ga. and the knowledge and experience 149; Chattanooga, E. & C. E. Co. v. of lumber which they brought with Owen, 90 Ga. 265, overruling Head them into the jury box, in connee- v. Bridges, 67 Ga. 236; Howard v. tion with their inspection of the State, 73 Ga. 84; Anderson v. Trib- exhibit, was held not erroneous. La- ble, 66 Ga. 584, criticising dictum in fayette Bridge Co. v. Olsen, 47 C. Sogers v. King, 12 Ga. 229; Patter- C. A. 367, 108 Fed. 335, 54 L. E. A. son ,v. City of Boston, 20 Pick. 33n. (Mass.) 166. 6— Marshall v. State, 54 Fla. 66. Compare State v. Jacob, 30 S. C. 552 Instructions to Juries. [§ 244 When a juror asks whether he may consider his own per- sonal knowledge of certain facts, the court should instruct that the case must be tried upon the evidence given at the trial, and not upon information that any one or more of their number may have outside of the record. 10 So, if a juror ask whether the jury can "judge a witness just by what he says on the stand, and not by what they know of him privately," it is error for the court to ignore such question, and instruct the jury as to the rules govern- ing juries in weighing testimony. In such case it is not authorized to do more than answer the question, and inform them that they should decide the case upon the evidence adduced at the trial. 11 The court may instruct ' ' that a juror can neither consider any fact which comes within his personal knowledge, nor can he" communicate it to the other jurors, ' ' where it appears that one of the jurors knew some fact material to the de- fense. 12 It is error "to instruct the jury: 'You may even consider their [the witnesses'] character for truth and veracity, if it be known to you. ' " 13 In an action for breach of a bond to convey real estate, an instruction ' ' that, in ascertaining the value of the lands at the time of the breach of the bonds, they [the jury] might consider, not only the evidence, but their own knowledge, as to the value of the land," is erroneous, 14 as is also an instruction that, in estimating damages, they are to use their own judgment, as well as the judgment of the witnesses. 15 131, 14 Am. St. Eep. 897, where it 12— State v. Jones, 29 S. C. 201. was held not improper to instruct 13 — Pettyjohn v. Liebscher, 92 Ga. that the jury are presumed to know 149. the character of the witnesses, hav- 14 — Gibson v. Carreker, 91 Ga. 617. ing been drawn from the vicinage for 15 — Brakken v. Minneapolis & St. that reason. L. By. Co., 29 Minn. 41. See also, 10— Citizens' St. E. Co. v. Burke, Heady v. Vevay, Mt. S. & V. Turn- 98 Tenn. 650. F ike Co -> 52 Ind - 117 - 11— Wharton v. State, 45 Tex. 2. § 245] Personal Knowledge of Jukors as Evidence. 553 § 245. View by jury of locus in quo. The probable weight of authority is to the effect that a view by the jury is not allowed for the purpose of furnish- ing evidence upon which to base a verdict, but for the pur- pose of enabling the jury to better understand the evidence introduced at the trial, 16 and that instructions authorizing the jury to treat their own personal observations as evidence in the case are erroneous. 17 There is some conflict of opinion upon this subject how- ever, and there are decisions in support of the view that the jury may be instructed upon the theory that what they have learned from the view is evidence in the case. 18 In support of the general rule it has been urged, that, if the rule were otherwise, the jury might base its verdict wholly on the knowledge thus acquired, regardless of an 'overwhelming weight of evidence to the contrary, and the losing party would' be without a remedy by motion for new trial; that it would be impossible to determine how/much weight was due to such knowledge, as contrasted with the opposing evidence, or, treating such knowledge as evidence, whether it was sufficient to raise a substantial conflict in the evidence and that ' ' the cause would be determined, not upon evidence giyen in court, to be discussed by counsel and con- sidered by the court in deciding a motion for a new trial, but upon the opinions of the jurors, founded on a personal inspection, the value or the accuracy of which there would, be no method of ascertaining." 19 16— Stanford v. Felt, 71 Cal. 249, 609; Brakken v. • Minneapolis & St. 16 Pae. 900; Heady v. Vevay, Mt. L. By. Co., 29 Minn. 43. S. & V. Turnpike Co., 52 Ind. 118; 18— City of Topeka v. Martineau, Keller v. Harrison, 151 Iowa 320, 42 Kan. 387, 5 L. R. A. 775, 22 Pac. Ann. Cas. 1913 A 300n; Close v. 419; Toledo, A. A. & G. T. Ey. Co. v. Samm, 27 Iowa 503; Schultz Dunlap, 47 Mich. 466; Washburn v. v. Bower, 57 Minn. 493, 47 Am. St. Milwaukee & L. W. E. Co., 59 Wis. Rep. 630; Brakken v. Minneapolis & 364. St. L. Ey. Co., 29 Minn. 43; Chute v. 19 — Wright v. Carpenter, 49 Cal. State, 19 Minn. 271 (Gil. 230). 609. 17 — Wright v. Carpenter, 49 Cal. 554 Instructions to Jubies. [§ 245 "An instruction to a jury sent- out to view land in con- troversy, ' that they examine the land, examine the quality of the soil, and the growth upon it,' and that 'you avoid forming an opinion as to its quality until you have finally heard all the evidence, ' does not authorize them to take into consideration the result of their own examination, as inde- pendent evidence. " 20 20— Wright v. Carpenter, 50 Cal. ' 556. CHAPTER XXV. Cautionary Instructions in General. § 246. Eight and duty to give cautionary instructions. § 247. Limiting consideration of evidence to purpose for which admitted and directing disregard of evidence in civil cases. § 248. Same — Criminal cases. § 249. Caution against sympathy or prejudice. § 250. Same — What instructions may be given. § 251. Same — Actions against corporations. § 252. Cautions as to argument of counsel. § 253. Same — Correcting erroneous or improper argument. § 254. Same — At what stage of trial correction made. § 255. Instructions to disregard comments of judge. § 256. Duty and conduct of jury. § 246. Right and duty to give cautionary instructions. The giving of cautionary instructions is necessarily a mat- ter very much within the discretion of the trial court, 1 but it is usually held that cautionary remarks having the effect of holding the jury to a consideration only of the law and evidence of the case in hand and to free them of any pos- sible prejudice from outside sources are proper, 2 though not always necessary. 3 1 — Day v. State, 54 Fla. 25; State ney v t Johnston, 142 111. App. 634; v. Barton, 70 Ore. 470, 142 Pac. 348; Springfield Electric Light & Power City of Tacoma v. Wetherby, 57 Co. v. Mott, 120 111. App. 39. Wash. 295, 106 Pac. 903. 2— St. Louis, I. M. & S. E. Co. v. The giving of cautionary instruc- Thurman, 110 Ark. 188. tions is discretionary. Birmingham 3 — An instruction as to the duty Fire Ins. Co. v. Pulver, 126 111. 329, of the jury to regard the law and 9 Am. St. 598, aff 'g 27 111. App. 17; the evidence may be properly re- Marchese v. Aurora, E. & C. E. Co., fused as unnecessary. Chicago, E. I. 156 111. App. 267; Olsen v. Chicago & P. E. Co. v. Clark, 134 111. App. City Ey. Co., 153 111. App. 75; Pen- 161, aff 'd 231 111. 548. ( 555 ) 556 Instructions to' Jubies. [§246 Accordingly it has been held proper to instruct that the jury are to accept the law as given by the court, 4 that they are to confine their investigation to the issues made by the pleadings, 5 that they must accept the instructions given as the law, 6 or that they may consider the extent to which any instruction given may be qualified by others of the series. 7 - Where a defendant requested that the court charge the jury that they must be governed by the law as given by the court in its charge, "and that they would not be justified in finding a verdict contrary to the law as laid down in the instruction," and the court's charge contained no similar instruction, it was error to refuse the request. 8 An instruction that the jury are not to consider the result of a former trial of the case is clearly correct, 9 and the court may rightfully instruct the jury to take the law from the court, and to disregard a case read in their hearing by counsel. 10 The giving of an instruction requiring the jury to disre- gard newspaper statements, is discretionary, 11 and an oral instruction cautioning the jury not to visit the location of an accident unless counsel agree that they go in a body is not erroneous. 12 4 — It is not error- to inform the Burridge, 211 111. 9, rev'g 107 HI. jury that they are to accept the law App. 23; People v. Beecher, 154 111. as given by the court. People v. App. 229. Crane, 4 Cal. App. 142, 87 Pac. 239. 7 — Chicago Union Traction Co. v. And see, City of St. Paul v. Hyslop, Hanthorn, 211 111. 367. 98 C. C. A. 609, 174 Fed. 391. 8— Chicago & E. I. B. Co. v. Stone- 5 — An instruction given out of an cipher, 90 111. App. 511. abundance of caution to confine the 9 — Travelers' Ins. Co. v. Parker, jury in their investigation to the 92 Md. 22. issues made by the pleadings is not 10 — Hyde v. Town of Swanton, 72 reversible error. Gracy v. Atlantic Vt. 242. Coast Line B. Co., 53 Fla. 350. See 11— Springfield Electric Light & also, §§77 et seq., ante. Power Co. v. Mott, 120 111. App. 39. 6 — An instruction requiring the 12 — Pioneer Fireproof Const, v. jury to accept the instructions given Sunderland, 188 111. 341, aff 'g 87 111. as the law governing the case, is App. J213. correct. ' Chicago & E. I. B. Co. v. § 247] Cautionary Instructions in General. 557 In an action for personal injuries, an instruction "that you [the jury] must not compromise between the questions of liability and amount of damages; that is, if, after due consideration of the evidence and instructions, * based upon a view as to the preponderance of the evidence, some of you should believe the defendant not guilty, and others * * * believe the defendant guilty, and plain- tiff entitled to substantial damages, you must not, in such event, merely as a matter of compromise, * * * bring in a verdict for some unsubstantial amount," — being, in effect, that the verdict must be either not guilty, or for sub- stantial damages, — was erroneous. 13 » Where the evidence tends to show the commission of a crime on a particular date, it is proper for the court to charge that every circumstance pointing to motive and in- tent may be considered with relation to any particular date on which an alleged crime may have been committed, on the assumption that the jury may find the crime to have been committed on a different date. 14 § 247. Limiting consideration of evidence to purpose for which admitted and directing disregard of evi- dence in civil cases. Evidence should not be excluded when admissible for some purposes, but not for others, 15 and when evidence of this nature is admitted it is proper to explain the purpose for which it was admitted and direct the jury not to consider it for any other purpose, 16 but the decisions are not har- monious as to the necessity of an instruction of this nature, in the absence of a request. 13 — Guaranty Const. Co. v. Broek- Evidence admissible for a certain er, 93 111. App. 272. purpose may be limited to its proper 14 — State v. Cunningham, 111 Iowa office by an instruction. People v. 233. Hagenow, 236 111. 514. 15 — Farwell v. Warren, 51 111. 467. Evidence incompetent for one pur- 16 — Giddings v. Baker, 80 Tex. pose is properly limited to a compe- 308; Missouri Pac. By. Co. v. John- tent purpose. Lowe v. Alton Baking son, 72 Tex. 95. & Catering Co., 158 111. App. 458. 558 Instructions to Jueies. [§ 247 In some cases it is held that a party desiring to have the effect of evidence limited, should request an instruction on such subject, 17 but in other cases it has been held error not to give such instructions, 18 although the reports do not dis- close whether any requests for instructions limiting the effect of evidence had been made. Where evidence is admitted which is competent only upon one issue in the case, it is error to refuse a request for an instruction so limiting the consideration of such evidence. 19 Where a fact is testified to by plaintiff's witnesses on rebuttal which is properly a fact in chief, but the court admits the testimony on the ground that it contradicts a witness for defendant, and affects his credibility, the court should instruct the jury clearly as to what use to make of it. 20 An instruction that conclusions as to negligence in an impeaching statement are not evidence and limiting the effect of such statement is proper, 21 and an error in per- mitting lands to be described in the condition in which they existed before a drainage district was organized, may be cured by an instruction to disregard such evidence. 22 In a negligence case, it has been held fatal error to refuse an instruction that evidence of precautions taken after the accident cannot be considered as evidence of negligence. 23 Where evidence is only admissible as bearing upon the 17 — Illinois. Harwell v. Warren, J. R. Co., 87 Mo. 285; Weir v. Mc- 51 HI. 467; Harmon v. Pe.oria Ry. Gee, 25 Tex. Supp. 20; Marks v. Cul- Co., 160 HI. App. 458. mer, 6 Utah 419, 24 Pac. 528. Indiana. Lipprant v. Lipprant, 52 19— Triolo v. Poster, (Tex. Civ. Ind. 273. App.) 57 S. W. 698. Iowa. Puth v Zimbleman, 99 Iowa 20 — Barlow Bros. Co. v. Parsons, 641. 73 Conn. 696. Missouri. Babb v. Ellis, 76 Mo. 21 — Nelson v. Northwestern El. R. 459; Schlicker v. Gordon, 19 Mo. App. Co., 170 111. App. 119. 479. 22 — Inlet Swamp Drain. Dist. v. Texas. Missouri Pac. R. Co. v. Anderson, 257 111. 214. Johnson, 72 Tex. 95. 23 — Anson v. Evans, 19 Colo. 274, 18— McDermott v. Hannibal & St. 35 Pac. 47. §248] Cautionary Instructions in General. 559 credibility of the testimony of a witness, but the court charges that whatever weight is to be given to the evi- dence upon any point the jury will have a right to con- sider, there is error. 24 The refusal of an instruction requiring the jury to disre- gard matter to which an objection has been sustained is proper; 25 and it has been held error to instruct on inad- missible evidence where proper objections are made. 26 Where a party fails to make proper objections to improper testimony he has no right to have such testimony excluded from the consideration of the jury. 27 §248. Same — Criminal cases. As a general rule, in criminal cases, when evidence com- petent for one purpose is admitted, the court should limit the jury's consideration of such evidence to that purpose alone for which it was admitted, whether requested to do so or not. 28 24 — Worthing v. Worthing, 64 Me. Kansas. State v. Marshall, 2 Kan. 335. App. 792, 44 Pae. 49. 25 — Chicago Consol. Traction Co. Kentucky. Tapscott v. Common- v. Gervens, 113 HI. App. 275. wealth, 140 Ky. 573; Gills v. Com. An instruction that particular evi- (Ky.) 37 S. W. 269. dence which has been excluded must Maine. State v. Lull, 37 Me. 246. be disregarded is properly refused. Missouri. State v. Bbbbitt, 228 Yezner v. Eoberts, Johnson & Rand Mo. 252. Shoe Co., 140 111. App. 61. North Carolina. State v. Collins, 26— .Republic Iron & Steel Co. v. 121 N. C. 667. Radis, 106 111. App. 530. Ohio. Harrington v. State, 19 27 — Lepman & Heggie v. Wabash Ohio St. 264. R. Co., 185 111. App. 583. Oklahoma. Smith v. State, 3 28 — Alabama. James v. State, 167 Okla. Cr. 629, 108 Pac. 418. Ala. 14; McGuire v. State, 2 Ala. Pennsylvania. Com. v. Tadrick, 1 App. 218. Pa. Super. Ct. 555. California. People v. Gray, 66 Texas. Rogers v. Statey 26 Tex. Cal. 271, 5 Pac. 240. App. 404; McCall v. State, 14 Tex. Indiana. Porter v. State, 173 Ind. App. 353; Long. v. State, 11 Tex. App. 694. 381; Elliott v. State, 58 Tex. Cr. Iowa. State v. Lavin, 80 Iowa App. 200; Winfrey v. State, 41 555. Tex. Cr. App. 538; Proctor v. State, 560 Instructions to Juries. [§ 248 There are some contra decisions as to this proposition, 29 and some exceptions and limitations, but the general rale is well established. 30 And in Texas it has been held that exceptions are unnec- essary to obtain a review of the error, 31 although the rule seems to have been changed by statute. 32 And in this state a failure to limit the effect of evidence not proper for consideration on some points of the case is not error in trials for misdemeanors, as distinguished ffom felony Cases, unless a request for such an instruction has been made. 33 In giving instructions limiting the effect of evidence, care should be exercised so as not to withdraw the evidence from the consideration of the jury, nor to restrain them from giving it, in connection with the other evidence in the ease, such weight in respect to the matter which proves, in the light of reason and good sense, they may as thus advised believe it deserves. 34 Whenever extraneous matter is admitted in evidence for 37 Tex. Cr. App. 366; Golin v. State, 66 Cal. 27:$ 5 Pae. 240; Harrington 37 Tex. Cr. App. 90; Martin v. v. State, 19 Ohio St. 264; Winfrey- State, 36 Tex. Cr. App. 125; Paris v. v. State, 41 Tex. Cr. App. 538; Short State, 35 Tex. Cr. App. 82; Thornley v. State (Tex. Cr. App.) 29 S. W. v. State (Tex. Cr. App.) 35 S. W. 982; 1072; Bngers v. State (Tex. Cr. App.) Short v. State (Tex. Cr. App.) 29 S. 26 S. W. 987. W. 1072; Engerg v. State (Tex. Cr. 29— People v. Gray, 66 Cal. 271, 5 App.) 26 S. W. 987. Pac. 240; Long v. State, 95 Ind. 481. Wisconsin. Fossdahl v. State, 89 30 — See decisions in note 28, Wis. 482; Kollock v. State, 88 Wis. ante. 663. 31— Burks v. State, 24 Tex. App. When evidence is admissible for 326; Paris v. State, 35 Tex. Cr. App. only one purpose, it should be re- 82; Thornley v. State (Tex. Cr. App.) strieted to the purpose for which it 35 S. W. 982. is admitted. McGuire v. State, 2 32 — Magee v. State (Tex. Cr. Ala. App. 218. App.) 43 S. W. 512. It is proper for the court to ex- 33 — Duke v. State, 35 Tex. Cr. App. plain to the jury the purpose for 283; Paris v. State, 35 Tex. Cr. App. which evidence was admitted, and 82. direct them not to consider it for 34— Harrington v. State, 19 Ohio any other purpose. People v. Gray, St. 264. § 248] Cautionary Instructions in General. 561 a specific purpose incidental to, but which is not admissible directly to prove, the main issue, and which might tend, if not explained, to exercise a wrong, undue, or improper influ- ence upon the jury as to the main issue, the court should so limit and restrict it that such unwarranted results can- not ensue. 35 When a document is read to a jury for a specific, lawful purpose, which is also evidence of facts not admissible, it is the duty of the court to instruct them to disregard every other consideration than the one for which it was admitted. 30 On the trial of an accomplice, the court should instruct that the jury must limit its consideration of the confessions of the principal to the question of his guilt. 37 , Where the declarations or admissions, of one of two de- fendants are admitted in evidence, the jury should be told that such declarations or admissions are evidence only against the defendant who made them, 38 although in one case, it has been held that where evidence is admissible as an admission against the defendant making it, if it is desired to limit such evidence against such defendant, the other defendants should request an instruction to that effect. 39 Where evidence is adduced of other crimes committed by defendant, in order to show motive or guilty intent, the court should properly instruct the jury with reference to the purpose and object of such testimony. 40 35 — Davidson v. State, 22 Tex. there was no evidence of any con- App. 372. spiracy between the defendants at 36— State v. Lull, 37 Me. 246. the time of the making of the dec- 37 — Thomas v. State, 43 Tex. Cr. laration. It was held that a failure App. 20, 96 Am. St. Rep. 834. to charge that such declaration 38 — State v. Collins, 121 N. C. 667; should not be permitted to affect thg Short v. State (Tex. Cr. App.) 29 absent defendant was error. S. W. 1072; Kollock v. State, 88 Wis. 39— People v. Darr, 262 HI. 202. 663. In this last case, two defend- 40 — Smith v. State, 3 Okla. Cr. 629, ants were tried together for unlaw- 108 Pac. 418; Com. v. Tadrick, 1 Pa. fully killing the hogs of another, and Super. Ct. 555; Barton v. State, 28 it was shown that one defendant, in Tex. App. 483; Mayfield v. State, 23 the absence of the other, had said Tex. App. 645; Wheeler v. State, that he intended to kill the hogs, and 23 Tex. App. 598; Taylor v. State, 22 Blashfleld Vol. 1—36 562 Instructions to Juries. [§ 248 The jury should be instructed to consider evidence intro- duced to affect the credibility of the defendant for that specific purpose alone, 41 as, for instance, evidence that defendant has been charged with other crimes, 42 or that he has been convicted of other crimes, 43 or evidence that de- fendant had attempted to suborn a witness, 44 or evidence tending to show that he is guilty of the crime of which he is charged. 45 Where there is evidence that the accused has made contra dictory and incriminating statements with respect to mat- ters bearing on the crime, it is proper to refuse to instruct ' ' that they could only be considered in so far as they affected the credibility of the defendant ; but this was not a request to instruct that evidence of defendant's bad character went only to his credibility as a witness, and was not evidence of his guilt, * * * because any and all statements shown to have been made by defendant tending to show his con- nection with the homicide were admissible, however incon- sistent they may have been, and regardless of any tendency that they may have had to discredit him as a witness before the jury. 46 Where evidence is admissible solely to contradict or im- peach a witness, it is not error to so limit the effect of the evidence by the charge to the jury, 47 Tex. App. 529, 58 Am. Eep. 656n; Cr. App.) 26 S. W. 987; Jenkins v Davidson v. State, 22 Tex. App. 382 McCall v. State, 14 Tex. App. 358 Long v. State, 11 Tex. App 381; Francis v. State, 7 Tex. App. 501 Mask v. State, 34 Tex. Cr. App. 136 State, 1 Tex. App. 346. 42— Oliver v. State, 33 Tex. Cr. App. 541. 43— Mahoney v. State, 33 Tex. Cr. App. 388; Hutton v. State (Tex. Cr. Thornley v. State (Tex. Cr. App.) 35 App.) 33 S. W. 569; Fossdahl v. S. W. 981; Martin v. State (Tex. Cr. State, 89 Wis. 482. App.) 35 S. W. 976; Kollock v. State, 44— Owens v. State, 35 Tex. Cr. 88 Wis. 663. Compare Shipp v. Com., App. 345. 101 Ky. 518. 45— Paris v. State, 35 Tex. Cr. 41 — Hardin v. State, 57 Tex. Cr. App. 82. App. 401; Golin v. State, 37 Tex. < 46— State v. Furgerson, 162 Mo. Cr. App. 90; Coker v. State, 35 Tex. 668. Cr. App. 57; Engers v. State (Tex. 47 — Rowan v. State, 57 Tex. Cr. § 248] Cautionary Instructions in General. 563 ' And generally, where testimony is introduced for the purpose of discrediting a witness, the omission to instruct the jury not to consider the evidence for any other purpose than that for which it was admitted is error. 48 A failure to limit the effect of the testimony of a witness for the prosecution in contradiction of a witness for defend- ant is not error, where the contradiction is more apparent than real. 49 It is not necessary to instruct that evidence of contradic- tory statements of a witness can be considered only for the purpose of affecting the credibility of the witness, where such evidence did not tend to establish the guilt of defend- ant. 50 It may be stated generally that, unless testimony impeach- ing witnesses for defendant can be used for some purpose injurious to defendant, it is not necessary to limit its effect by an instruction. 51 • ' It is proper to charge that, "where a witness testifies for one side, it is competent for the other side to introduce another, witness to swear that on a particular occasion, that witness made statements different from the statements that he made on the stand, * * * and that is done for the purpose of tending to show (and it is for you to give the evidence such weight as it is entitled to), he is not worthy of credit, and that is the purpose for which it was intro- duced." That, however, does not show that the contra- dictory statements of the witness made to the impeaching witness are true or untrue, but such statements are declara- tions made out of court, and not original evidence. 52 App. 625, 136 Am. St. Rep. 1005; 50— Ross v. Com. (Ky.) 59 S. W. Goss v. State, 57 Tex. Cr. App. 557; 28. Winfrey v. State, 41 Tex. Cr. App. 51— Blanco v. State (Tex. Cr. 538. App.) 57 S. W. 828. 48— Gills v. Com. (Ky.) 37 S. W. 52— Bohdurant v. State, 125 Ala. 269; Rogers v. State, 26 Tex. App. 31. 404. 49 — Massingill v. State (Tex. Cr. App.) 63 S. W. 315. 564 Instructions to Juries. [§ 248 If the purpose of admitting the evidence objected to is clearly apparent, 53 or the jury "could not possibly have con- cluded it was [admitted] for any other purpose" than the one for which it was admitted, the failure of the court to restrict the effect of such evidence is not error, 54 Thus, where witnesses admit that they have been previ- ously indicted for various felonies, a failure of the court to limit the effect of such admissions to questions affecting their credibility is not error, in view of the fact that such admissions cannot be considered for any other purpose. 55 So, failure to limit testimony as to the good reputation of the prosecuting witness for truth and veracity is not error, if the testimony shows that the jury could not have considered it for any other purpose than to affect the credi- bility of said witnesses. It is only where testimony might be used for some other purpose than to discredit the witness that it is necessary for the court to limit the same for the purposes for which it was introduced. 56 § 249. Caution against sympathy or prejudice. It is well settled that the trial judge may caution the jury not to allow sympathy or prejudice to influence them in making up their verdict. 57 53 — State v. Gaston', 96 Iowa 505; Mississippi. Wood v. State, 64 Moseley v. State, 36 Tex. Cr. App. Miss. 776. 578. Nebraska. Smith v. State, 4 Neb. 54— Holly v. Com. (Ky.) 36 S. W. 278. 532; Magee v. State (Tex. Cr. App.) South Carolina. State v. Petscli, 43 S. W. 512. 43 S. C. 132. 55 — Gann v. State (Tex. Cr. App.) Washington. Wheeler v. Hotel 59 S. W. 896. Stevens Co., 71 Wash. 142, Ann. Cas. 56— Ogle v. State (Tex. Cr. App.) 1914 C 576n, 127 Pae. 840. 58 S. W. 1004. In a personal injury case it is 57 — Illinois. Jones & Adams Co. v. proper to instruct that neither sym- George,, 227 111. 64, 10 Ann. Cas. 285, pathy nor prejudice should influence rev'g 125 HI. App. 503; Birmingham the verdict. Jones & Adams Co. v. Tire Ins. Co. v. Pulver, 126 111. 329, 9 George, 227 111. 64, 10 Ann. Cas. 285, Am. St. Rep. 598. rev'g 125 HI. App. 503. Indiana. Blizzard v. Applegate, 77 Ind. 526. § k!49] Cautionaby Instbuctions in GtEneeal. 565 But there is some diversity of opinion as to the necessity of such instructions. In a number of decisions it is held that the question whether such a charge should be given is within the dis- cretion of the trial court, 58 but it has also been held that such an instruction should be given when necessary, 59 and that there may be circumstances rendering it imperatively necessary, 60 as where the evidence shows a strong prejudice against a defendant. 61 In one decision it was said that a case might readily be supposed "where such admonition to a jury would be not only proper, but necessary, 62 and it has been held that a general instruction on such subject, cannot be criticised. 63 That such an instruction, if asked, should be given in most cases, as it cannot harm or be of undue advantage to either party but a refusal of such an instruction was sustained because the reviewing court thought no prejudice had re- sulted therefrom. 64 On the other hand it has been said: The trial judge "is in a position to observe and know whether the situation is such as to render such cautionary instructions necessary to a due administration of justice, and if, in his opinion, they are not, his refusal to give them cannot ordinarily be as- signed for error," — and the refusal of such an instruction was sustained. 66 58 — Spear v. United B. B. of San necessary where the, evidence shows Francisco, 16 Cal. App. 637, 117 Pae. a strong prejudice against a defend- 956; Birmingham Fire Ins. Co. v. ant. State v. Barton, 70 Ore. 470, Pulver, 126 111. 329, 9 Am. St. Eep. 142 Pac. 348. 598; State v. Talbott, 73 Mo. 347. * 62— Blizzard v. Applegate, 77 Ind. 59 — Wheeler v. Hotel Stevens Co., 526. 71 Wash. 142, Ann. Cas. 1914 C 576n, 63— People v. Botkin, 9 Cal. App. 127 Pac. 840. 244, 98 Pac. 861. 60 — State v. Barton, 70 Ore. 470, 64— Doyle v. Dobson, 74 Mich. 567. 142 Pac. 348. 65 — Birmingham Fire Ins. Co. v. 61 — An instruction cautioning, the Pulver, 126 111. 329, 9 Am. St. Eep. jury against allowing prejudice or 598. sentiment to influence its verdict is 566 Instructions to Juries. [§ 249 In one case the writer of the opinion states that he is not certain that a cautionary instruction on this subject ever has a particle of effect as the jurors are not aware that their opinion is being affected by the subtle influence of sympathy. 66 A request for a caution of this nature may, of course, be refused, if there is nothing in the circumstances of the case which would make it proper. 67 § 250. Same — What instructions may be given. An instruction that the jury in arriving at their verdict should not be influenced by any feeling of sentiment, but, that they should apply the law as given by the court to the facts of the case is proper. 68 So, an instruction that : ' ' You have no right to act upon your sympathies without any proof; but if the proof hap- pened to concur with your sympathies, you are not to dis- regard the proof because of that fact. You are to be gov- erned by the proof in the case," — has been approved. 69 And it has been held proper to instruct that "you will allow no false sympathy to sway you from a proper dis- charge of your duty;" 70 or "that it was of no consequence whether defendant was married or, single;" 71 or that the jury should not ' ' lose their heads, and return a verdict for a lady on general principles;" 72 or "should consider the case without regard to the difference in race or color of the parties." 73 In a case involving the fitness of an applicant for a liquor license, it was held proper to refuse an instruction that, "in passing upon this case, * * ' * it is your duty not to 66 — Scheurmann v. Mathison, 67 70 — Smith v. State, 4 Neb. 277. Ore. 419, 136 Pac. 330. 71— People v. Young, 65 Cal. 225, 67— Central Branch Union Pac. R. 3 Pac. 813. Co. v. Andrews, 41 Kan. 370, 21 Pac. 72— Bingham v. Bernard, 36 Minn. 276. 114. 68— Day v. State, 54 Fla. 25. 73— Lunsford v. Walker, 93 Ala. 69— Shehan v. Barry, 27 Mich. 217. 36. § 250] Cautionary Instructions in General. 567 allow yourselves to be influenced by the presence of a lobby in the court room opposed to the granting of the plaintiff's petition," on the ground that it is calculated to preju- dice the jury against the' parties opposing the grant of the license. 74 An instruction cautioning the jury to dismiss all per- sonal feeling and sympathy, aroused by the appearance in court of the widow and children of a deceased, has been held proper in view of the argument made by counsel; 75 and it has been held proper to charge that "no consideration of feeling or sympathy for the injured person or the defendant, or family of either, or relatives, should control the jury" in determining their verdict ; 76 or that the jury should not be influenced by any supposed hardships of the case. 77 An instruction that it is the jury's duty to try the case without being influenced by sympathy and that they should disregard all question of the relative financial condition of the plaintiff and defendant, is improper as not being based on the evidence, where an action involves only the question of liability for negligence and punitive damages are not asked. 78 In criminal cases it has been held proper to instruct that the jury should not "allow any considerations of public policy or over-anxiety to enforce the law to influence them in the * * * decision of the case;" 79 or to "caution the jury not to be influenced by public opinion, whether for or against accused, and to state to them that they had noth- 74 — Lynch v. Bates, 133 Ind. 206. suffer, yet as honest men, bound by 75 — Smith v. Sanitary Dist. of oath to administer judgment accqrd- Chieago, 260 111. 453. ing to law and evidence, they were 76 — Wood v. State, 64 Miss. 761. properly cautioned by the presiding 77 — Davis v. Kingsley, 13 Conn. judge against the appeal made to 285. In this case the court said: their feelings by the counsel for the "Justice, as well as law, requires defendants." that he who has assumed an obliga- 78 — Eiverside & Dan River Cotton tion for another should faithfully Mills v. Carter, 113 Va. 346. fulfill it; and although, as men, jur- 79 — State v. Talbott, 73 Mo. 347. ors may sympathize with those who 568 Instructions to Juries. , [§ 250 ing to do with the pleasure or displeasure of the public;" 80 or that the jury should not be controlled in making up their verdict by any fear as to what the punishment may be. 81 Questions of mercy are not for the jury, but for the execu- tive, in the exercise of the pardoning power; and it is not error to tell the jury so in the instructions. 82 Thus, an instruction that: "Mercy does not "belong to' you. No question of mercy, sentiment, or anything else resides with you, except the question as to whether or not you believe from the evidence, beyond a reasonable doubt, that the defendant is guilty," 1 — is not erroneous. 83 In cautioning the jury against sympathy or prejudice, a remark by the court that the crime of which defendant was accused was a dastardly one was held not reversible error. 84 § 251. Same — Actions against corporations. Usually, the giving of a cautionary instruction as to fair- ness to a defendant corporation is largely within the court's discretion. 85 Some courts have said that it is proper for the court to warn jurors to beware of giving to a private individual greater consideration than to a corporation in making up its verdict, but it is not held that such warning is indis- pensable. 86 An instruction in an action against a local telephone com- pany, in which many of the citizens of the county were inter- ested, cautioning the jury to determine the case from the 80— McTyier v. State, 91 Ga. 254. 83— Avery v. State, 124 Ala. 20. 81— Brantley v. State, 87 Ga. 149; 84— State v. McCarter, 98 N. C. Wilson v. State, 69 Ga. 240; Coyle v. 637. Com., 100. Pa. St. 573, 45 Am. Rep. 85— Donk Bros. Coal & Coke Co. v. 397. Thil, 228 111. 233, aff'g 128 111. App.' It is not error to tell the jury that 249; Chicago & E. I. B. Co. v. Bur- they have nothing to do with the ridge, 211 III. 9, rev'g 107 111. App. question of punishment. Clary v. 23; Lecklieder v. Chicago City By. State, 61 Neb. 688. Co., 172 111. App. 557. 82 — Dinsmore v. State, 61 Neb. 86 — Turner v. Southwest Mo. B. 418. Co., 138 Mo. App. 143. § 252.] Cautionary Instructions in General. 569 testimony and the law, and the instructions given, is not erroneous. 87 § 252. Cautions as to argument of counsel. In general, it is improper for the trial judge in charging the jury to make any statements, the tendency of which is to disparage or discredit arguments which are within the law and facts of the case. The privilege of parties to be heard at the bar through their counsel is well recognized, 88 and a wide latitude is given to the latter in making their argument to the jury, 89 it being their privilege to refer to the evidence and to make such deductions as they think are justified. 90 Accordingly, it has been held error to direct an entire disregard of the argument; 91 or to instruct the jury that they should not consider any law that has been addressed to them by counsel, whether applicable to the facts or not, 92 so it has been held improper to refuse, as unduly limiting the effect of legitimate argument, a charge that "whatever may have been said or claimed by counsel * * * in their arguments to the court should have no influence what- ever with the jury in determining the facts in the case, ex- cept so far as the testimony, when considered t altogether, may show the statement to have been true;" and that "the jury should not be influenced by anything but the testimony in the cause, with whatever light may have been reflected thereon by the arguments and analysis of counsel, and the law as it has been given you in charge by the court, and from these alone endeavor to arrive at the very truth, re- gardless of results. " 93 87 — Anthony v. Cass County Home 154; People v. Ambach, 247 111. 451; Tel. Co., 165 Mich. 388. Svenssbn v. Lindgren, 124 Minn. 386, 88 — Garrison v. Wilcoxson, 11 Ga. Ann. Cas. 1915 B 734n. 154; State v. O'Neal, 29 N. C. 252. 92— Reeves v. State, 34 Tex. Cr. 89— State v. O 'Neal, 29 N. C. 252/ App. 483. 90— People v. Hite, 8 Utah 461, 33 93— People v. Hite, 8 Utah 461, 33 Pac. 254. Pac. 254. 91 — Garrison v. Wilcoxson, 11 Ga. 570 Instructions to Juries. [§ 252 On the other hand, a charge ' ' that the attorneys on either side are not supposed to be impartial, and that the jury are to take their statements both on the law and facts guard- edly, ' ' has been upheld. 84 So, where counsel expressed strongly his belief in his cli- ent's innocence, it was held that an instruction that "what counsel said in their argument, and what they believed," was to have no influence with the jury whatever, was not erroneous, it being apparent from the context that the words referred solely to counsel's statement as to his belief in defendant 's innocence. 95 It has also been held that the court may, after instruct- ing the jury correctly upon a matter presented by counsel, add that, as a general rule, it is the fairest and best way for a jury to decide cases mainly upon the. grounds taken and discussed by counsel in the argument. 96 An instruction that "statements of counsel are not evi- dence, and should not be considered by the jury in arriving at their verdict," is not objectionable as destroying the effect of a defendant 's counsel 's argument. 97 And a statement by the judge in charging that he could not "do anything towards brushing away the sophistries of counsel" was held not improper, where there was nothing to indicate a personal application of the words to any par- ticular counsel, and the words were spoken when he was stating exactly and fully the restrictions of the law upon the judge endeavoring to comment upon the facts in evidence. 98 § 253. Same — Correcting erroneous or improper argument. In the case of improper or irrelevant argument of coun- sel, the error should be corrected, it being the duty of the court to keep counsel within the boundaries of legitimate argument. 99 94— State v. Jones, 29 S. C. 201. 96— Melvin v. Bullard, 35 Vt. 268. 95— Smith v. State, 95 Ga. 472. 97— State v. Heath, 237 Mo. 255. See also, Roe v. State, 25 Tex. App. 98— State v. Way, 38 S. C. 347. 33. 99— People v. Lange, 90 Mich. 454; § 253] Cautionary Instructions in General. 571 The court should correct statements made by counsel of matters as proved which are not based on any evidence in the case, 1 as well as any misrepresentation of law by counsel, whether in a civil or criminal case, even though admitted to be law by the parties or their counsel. 2 In a case where it was held proper for counsel to read extracts from a law book to the jury by way of illustration, it was held that an instruction "that such course was im- proper, and would not have been permitted if it had been objected to; that it was calculated to, and might, mislead the jury," should not have been given. 3 If it is improper for counsel to read law books to the jury, the court may properly charge that any matter read to them from law books must not be considered by them for any purpose. 4 In the case of improper argument as to a proposition of law not involved in the case, an instruction that the propo- sition should be disregarded should be requested, 5 and it has been held reversible error to refuse to grant instructions to obviate prejudice caused by improper argument. 6 Much latitude is allowed the trial court in calling atten- tion to improper argument, 7 but in so doing it is improper Evans v. Town of Trenton, 112 Mo. 4— Morehouse v. Remson, 59 Conn. 390; State v. Johnson, 23 N. C. 354, 392. See also, Jones v. State, 65 Ga. 35 Am. Dec. 742. 510, in which it was held that, where 1 — Birmingham Nat. Bank v. Brad- counsel read extracts from ' ' Phillips ' ley, 116 Ala. 142; Nelson v. Welch, Remarkable Cases of Circumstantial 115 Ind. 270; Melvin v. Easley, 46 Evidence," it was not error to N. C. 386, 62 Am. Dec. 171; State v. charge "that the jury must not be O 'Neal, 29 N. C. 252. influenced, guided by,, or accept as It is proper to caution the jury law in this case any imaginary cases against the influence of statements taken from works of romance. " of counsel not based on the evidence. 5 — Hart v. Wilson, 177 111. App. Szczech v. Chicago »jity Ry. Co., 157 510. 111. App. 150. 6— Brow v. State, 103 Ind. 133; 2 — State v. Johnson, 23 N. C. 354, State v. McCartney, 65 Iowa 522. 35 Am. Dec. 742; Gregory's Adm'r 7 — Svensson v. Lindgren, 124 v. Ohio River R. Co., 37 W. Va. 606. Minn. 386, Ann. Cas. 1915 B 734n. 3 — People v. Anderson, 44 Cal, 65. 572 Instructions to Juries. [§ 253 to go to the extent of giving an instruction which practically tells the jury to disregard the argument. 8 An instruction directing a disregard of statements not based on the evidence has been held not equivalent to a direction to disregard the arguments made at the trial. If extracts from reported cases are read by counsel on the question of the measure of damages, the error is cured by an instruction that the jury are to determine the case upon the evidence, uninfluenced by damages given in other cases. 10 Where counsel states "that on a former trial a verdict had been rendered for plaintiff," the impropriety is cured by an instruction that the jury ' ' had nothing to do with the former trial." n A repetition by counsel of excluded testimony is cured by an instruction which explicitly defines the issues, and directs the jury not to consider such excluded testimony. 12 Where counsel improperly attacks the credibility of a witness, on whose testimony alone the defense depends, by the suggestion that such witness has been tampered with, the error is not cured by an instruction that the jury are to decide the case on' the evidence, and what the witnesses say, and not on what counsel say. 13 An argument prejudicial to a party will not be held to have been cured by an instruction that the jury must disre- gard it, where the verdict indicates that the argument was more effective than the instruction. 14 8 — Svensson v. Lindgren, 124 12— Talmage v. Smith, 101 Mich. Minn. 386, Ann. Cas. 1915 B 734n. 370, 45 Am. St. Eep. 414. 9 — North Chicago St. E. Co. v. 13— Sullivan v. Deiter, 86 Mich. Wellner, 206 111. 272, aff'g 105 111. 404. App. 652. 14— Galveston, H. & S. A. Ey. Co. 10— City of Evansville v. Wilter, v. Kutac, 72 Tex. 643. 86 Ind. 414. 11 — Chesebrough v. Conover, 140 N. Y. 382. § 255] Cautionary Instructions in General. 573 § 254. Same — At what stage of trial correction made. In one case, it has been said that "it may be laid down as law, and not merely discretionary, that where the counsel grossly abuses his privilege, to the .manifest prejudice of the opposite party, it is the duty of the judge to stop him then and there, and, if he fails to do so, * * * it is good ground for a new trial." 15 But, ordinarily it will be sufficient to correct an improper statement made by counsel in argument in giving the charge to the jury. 16 Where the jury return a verdict of guilty, but, on being polled, three of them refuse to concur in the verdict, it is too late for the court to say that counsel improperly repre- sented that the opinion of the court must have been against the defendant. Such misrepresentation should be corrected when it is made. 17 § 255. Instructions to disregard comments of judge. Improper statements or comments of the court made dur- ing the course of the trial are subject to correction by the giving of proper instructions in the same manner as im- proper argument of counsel. Accordingly, it has been held proper in one case to instruct that statements made by the court are not to be taken as an expression of opinion on the facts. 18 An instruction that the court does not intimate, "or mean to give, or wish to be understood as giving, an opinion as to what the proof is or what it is not, or what the facts are in this case, or what are not the facts therein. It is solely 15 — Jenkins v. North Carolina Ore the right and duty of the trial judge Dressing Co., 65 N. C. 564. to correct the mistake, and that he 16 — Melvin v. Easley, 46 N. C. 386, might do it at the moment, or wait 62 Am. Dec. 171; State v. O'Neal, 29 till he charges the jury— perhaps the N. C. 251. In this last case it was most appropriate time, said that there was no obligation on 17 — State v. Caveness, 78 N. C. 484. the judge to interrupt counsel in 18 — Doll v. Chicago Consol. Trac- stating their conclusions; that it is tion Co., 153 111. App. 442. 574 Instktjctions to Jukies. [§ 255 and exclusively for the jury to find and determine the facts, and this they must do from the evidence, and, having done so, then apply to them the law as stated in these instruc- tions," — is not erroneous, as impressing the jury with the idea that they are independent of the court and the law. 19 But, an instruction admonishing the jury that they are to ignore any language, employed by the court in discussing questions of law with counsel, which may have indicated his opinion as to the facts, as it was the duty of the court to declare the law, and of the jury to determine the facts according to their best judgment, regardless of any con- sideration other than that of doing even-handed justice between the parties to the suit, is erroneous, in that it leaves them to determine the facts according to their own best judgment, regardless of any consideration other than that of doing even-handed justice between the parties. 20 § 256. Duty and conduct of jury. The giving of instructions as to the duty of jurors to agree on a verdict has been considered in a prior chapter. 21 An instruction asked, stating that each juror should de- cide for himself on his oath as to what his verdict should be, and should not yield his deliberate conscientious convic- tions as to what the verdict should be, either at the instance of a fellow-juror, or at the instance of a majority, nor yield his honest convictions for the sake of unanimity, or to avert the disaster of a new trial, is properly refused, as incorrectly stating the duty and obligation of a juror. 22 An instruction that the jury are to "consider, first, the defendant's affirmative defense, and, if it is supported by the evidence, to find for the defendant. They are then instructed that, if they do not find it supported by the evi- 19— North Chicago St. E. Co. v. 21— See ch. XXIII, ante. Kaspers, 186 111. 246, aff'g 85 HI. 22— Horton v. United States, 15 App. 316. App. Cas. (D. C.) 310. See also, 20 — Chicago North Shore St. By. Highland Foundry Co. v. New York, Co. v. Hebson, 93 111. App. 98. N. H. & H. E. Co., 199 Mass. 403. § 256] Cautionaey Instructions in General. 575 dence, to consider plaintiff's complaint, and, if they found it supported by evidence, to find for plaintiff," — is a cor- rect instruction as to the burden of proof upon the facts alleged in the complaint and answer, respectively, and is not unfavorable to defendant. 23 An instruction that the jury, in deliberating upon the case, are "not to refer to or discuss any matter or issue not in evidence before you; neither shall you separate from each other, nor talk with any one not of your jury; and a viola- tion of this injunction will be punished severely by the court, ' ' — is not only not objectionable as a threat, but is to be heartily commended as a warning to the jury not to con- sider any issue not in evidence before them. 24 An instruction that, if the jury find for the plaintiff, they must not assess damages by adding the amounts they indi- vidually think should be awarded, and dividing the amount so obtained by the number of jurors, unless they thereafter agree upon such amount as a just sum under the evidence, is erroneous, as tending to induce the jury to reach a verdict in the manner censured by the instruction. 25 23— Chicago, I. & E. Ry. Co. v. 25— West Chicago St.' R. Co. v. Patterson, 26 Ind. App. 295. Dougherty, 89 111. App. 362. 24 — Villereal v. State (Tex. Cr. App.), 61 S. W. 715. CHAPTER XXVI. INSTRUCTIONS ON PRESUMPTIONS OF Law AND FACT ; BURDEN of Proof and Degree of Proof. § 257. Introductory statement. § 258. Presumption of innocence. § 259. Necessity of instructions as to presumption of innocence. § 260. Same — Effect of giving proper instructions as to reasonable doubt. § 261. Sufficiency of instructions as to presumption of innocence. § 262. Presumption that a person intends the natural consequences of his acts. § 263. Presumption of malice. § 264. Presumption from unexplained possession of recently stolen propertj\ § 265. Conflict of authority as to instructions on subject of possession of stolen property. § 266. Sufficiency of instructions as to possession of stolen property. § 267. Instructing that possession of recently stolen property raises pre- sumption of guilt. § 268. Instructing that possession of recently stolen property is strong evi- dence of guilt. § 269. Instructing that burden of explaining possession is on defendant. § 270. Instructions as to defendant 's explanation of possession. § 271. Presumptions as to sanity. § 272. Presumption that defendant is feigning insanity. § 273. Instructing that defense of insanity is to be viewed with care. § 274. Presumption that all men are sane. § 275. Conflicting presumption of innocence. . § 276. Presumption as to continuance of insanity. § 277. Presumptions arising from flight. § 278. .Sufficiency of instructions as to presumption arising from flight. § 279. Same — Invasion of province of jury. § 280. Same — Explanation of flight. § 281. Burden of proof — Necessity and propriety of giving instructions. § 282. Eepetition of instructions as to burden of proof. § 283. Sufficiency of instructions as to burden of proof. § 284. Degree of proof necessary in civil cases. § 285. Necessity of instructions as to preponderance of evidence. § 286. Sufficiency of instructions as to preponderance of evidence. § 287. Same — Definitions. (576) § -257] Presumptions, Burden and Degree of Proof. 577 §288. Same — Use of word "preponderance." § 289. Same — Elements to be considered. § 290. Same— Evidence. § 291. Determination of preponderance of evidence from credibility and intelligence of witnesses. § 292. Comparison of number of witnesses. § 293. Same — What instructions are improper. § 294. Instructions as to preponderance of evidence where evidence is equally balanced. § 295. Instructions as to preponderance of evidence requiring too high a degree of proof. §296. Same — Instructions requiring that evidence must "satisfy" jury. § 257. Introductory statement. A discussion of the subject of instructions as to presump 7 tions of law and fact is intimately connected with matters which have been treated in other chapters of this work. 1 As a general rule, when the circumstances proved are of such a character that the law itself raises a presumption, the court may properly instruct the jury to draw such an inference. 2 And it has been held that presumptions of law favorable to a defendant in a. criminal case, should be given to the jury whenever at all applicable ; 3 but presumptions of law which are against the defendant should not ordinarily be given in the charge to the jury. 4 On a trial for furnishing drugs to procure a miscarriage, an instruction that "there is a presumption that things have happened according to the ordinary course of nature and the ordinary habits of life. Such presumption may be controverted or disproved by other evidence," is proper, 1 — See ch. VII, ante, "Province Maryland. Peterson's Ex'rs v. of Court and Jury," and ch. VIII, Ellicott, 9 Md. 52* anie - Missouri. Glover's Adm'rs v. 2— Alabama. Weil v. State, 52 D un i e 19 Mo. 360. Ala. 19; Oliver v. State, 17 Ala. 587. „ ' „ ' ',,,,, „„ „ _ . ' . „,„.„-, Texas. Heldt v. Webster, 60 Tex. California. People v. Carnllo, 54 ' * ■ 207; Mitchell v. Stanton, — Tex. Civ. Illinois. Herkelrath v. Stookey, 63 A PP- — ' 139 S - W " 1033 - 2U 4 gg 3 — Snowberger v. State, 58 Tex. Cr. Indiana. Union Mut. Life Ins. Co. App. 530. v. Buchananj 100 Lad. 81. 4 — Coker v. State, 59 Tex. Cr. App. Blashfield Vol. 1—37 578 Instructions to Juries. [§257 it appearing that one of the questions in the case was whether the birth of a fully developed and perfect child had come about in the ordinary course of nature. 8 The court must not instruct as to what inferences of fact the jury are to draw from the evidence, 6 and- an instruction stating mere presumptions of fact may be refused. 7 It is not proper for the court to instruct the jury that a certain fact is to be presumed by them from the proof made of another or other facts, 8 since presumptions of fact should 241; Snowberger v. State, 58 Tex. Cr. App. 530/ 5 — People v. Richardson, 161 Cal. 552, 120 Pac. 20. 6 — Continental Life Ins. Co. v. Tung, 113 Ind. 159, 3 Am. St. Rep. 630n; Coleman v. State, 111 Ind. 563; Louisville, N. A. & C. Ry. Co. v. Fal- vey, 104 Ind. 409; Union Mut. Life Ins. Co. v. Buchanan, 100 Ind. 63; Ellis v. Spurgin, 48 Tenn. 74. 7— People v. Arnold, 248 111. 169. 8 — Alabama. Weil v. State, 52 Ala. 19; Cox v. Knight's Adm'r, 49 Ala. 173. California. People v. Carrillo, 54 Cal. 63; Stone v. Geyser Quicksilver Min. Co., 52 Cal. 35; People v. Waldem, 51 Cal. 588. Connecticut. Beers v. Housatonuc R. Co., 19 Conn. 570. Florida. Mayer v. Wilkins, 37 Fla. 244. Illinois. Pittsburgh, Ft. W. & C. R. Co. v. Callaghan, 157 111. 406; Ash- lock v. Linder, 50 111. 169. Indiana. City of Columbus v. Strassner, 138 Ind. 301; Fulwider v. Ingels, 87 Ind. 414. Maine. Cook v. Brown, 39 Me. 443. Maryland. Newman v. McComas, 43 Md. 7,0; Wilson v. Smith, 10 Md. 67; Peterson's Ex'rs v. Ellicott, 9 Md. 52; Walkup v. Pratt, 5 Har. & J. 57. Michigan. People v. Castro, 75 Mich. 127; Richards v. Fuller, 38 Mich. 653. Mississippi. Dickson v. Moody, 2 Smedes & M. 17. Missouri. Glover's Adm'rs v. Duhle, 19 Mo. 360. Nebraska. Omaha Fair & Exposi- tion Ass'n v. Missouri Pac. Ry. Co., 42 Neb. 535. New York. Gilbertson v. Forty- Second Street, M. & St. N. Ave. R. Co., 14 Misc. 527. North Carolina. State v. Cardwell, 44 N. C. 245. Pennsylvania. Wenrich & Co. v. Heffner, 38 Ta. St. 207. Tennessee. Neideiser v. State, 6 Baxt. 499; Farmers' & Merchants' Bank v. Harris, 2 Humph. 311; John- son v. State, 2 Humph. 283, 36 Am. Dec. 322; Claxton v. State, 2 Humph. 181; Augusta Mfg. Co. v. Vertrees, 4 Lea 75. Texas. Stooksbury v. Swan, 85 Tex. 563; Frisby v. Withers, 61 Tex. 134; Reynolds v. Weinman (Tex. Civ. App.) 33 S. W. 302; Clifford v. Lee (Tex. Civ. App.) 23 S. W. 843; Hanna v. Hanna, 3 Tex. Civ. App. 51; Hammond v. Coursey, 2 Posey, Unrep. Cas. 29. § 257] Presumptions, Burden and Degree of Proof. 579 always be left to the exclusive consideration of the jury. 9 "When a judge instructs a jury that a given fact will be presumed, he must be understood to mean that the fact is to be taken as established,— a result which cannot be reached except in those cases in which the presumption is said to be of law, and therefore conclusive, otherwise than by weighing the evidence, and therefrom determining the existence or nonexistence of the fact." 10 The following cases will serve to illustrate the principle stated. Where there is conflicting evidence as to the legal- ity of a sale, it is error to instruct that if a sale is shown it is presumed to be legal. 11 Upon the question of the incorporation of a company, it is error to charge that the mere execution of a deed to the company by one party, and of a new deed in confirmation by the devisee of that party, would not be sufficient proof of user of franchises to establish the incorporation. The jury should have been left to draw their own inference. 12 An instruction that if the engine which caused the injury complained of was marked with the name of defendant's company, and also with the words, "Chicago Switching Association," there was no presumption as to which cor- poration or association had its management, is erroneous, as invading the province of the jury, and should be refused. 13 To instruct that an assignment is fraudulent if the insolvent, previous thereto, obtained credit on false repre- 9 — California. People v. Walden, N. Y. 673; Justice v. Lang, 52 N. Y. 51 Cal. 588. 323. Illinois. — Graves v. Colwell, 90 111. Texas. Heldt v. Webster, 60 Tex. 612; Graff v. Simmons, 58 111. 440. 207. Maryland. Newman v. McGomas, 10 — Stooksbury v. Swan, 85 Tex. 43 Md. 70. 563. Michigan. People v. Gastro, 75 11 — Reynolds v. Weinman (Tex. Mich. 127; Sheaham v. Barry, 27 Civ. App.), 33 S. W. 302. Mich. 217. 12 — Augusta Mfg. Co. v. Vertrees, Mississippi. Dickson v. Moody, 2 4 Lea (Tenn.) 75. Smedes & M. 17. , 13— Pittsburgh, Ft. W. & C. Ey. New York. Stokes v. Johnson, 57 Co. v. Callaghan, 157 111. 406. 580 Instructions to Juries. [§ 257 sentations as to his finances, is erroneous, since the ques- tion of fraudulent intent is for the jury alone. 1 * "In a suit on a bond given in compromise of a bastardy proceeding, conditioned, among other things, ' that the said S. should not, by his misconduct, give the plaintiff legal cause for divorce, ' an instruction to the jury : ' If you find that he (the defendant), after their said marriage, sought the society o'f prostitutes and women of bad repute for chas- tity, or that he went into a private bedroom with a woman of bad repute for chastity, or a prostitute, in the nighttime, and remained there for some time, no one else being present, then, and in either event, your verdict should be for the plaintiff,' — is erroneous, because it imposes upon the jury an inference made by the court." 15 An instruction was asked that the jury ought to presume the grant of letters testamentary upon their finding certain facts stated in it, and in which all the -facts were not pre- sented, among which was not included the proof on the opposite side that the records of the orphans ' court did not show the granting of such letters, and the declarations and admissions of the widow of the deceased, who was named as executrix in the will, and of parties claiming under her, that no such letters had been granted. It was held that this instruction was calculated to mislead the jury, and its im- perative direction to the jury would be fatal, if there were no other objection. 16 An instruction failing to state that the presumption of knowledge of the contents of a receipt arising from signing the same is rebuttable, is not error where such presumption is stated in other instructions. 17 § 258. Presumption of innocence. It is a fundamental principle of criminal law that a per- 14— Mayer v. Wilkins, 37 Fla. 244. 17— People v. Strauch, 240 111. 60, 15— Stanley v. Montgomery, 102 130 Am. St. Bep. 255, aff'g 144 111. Ind. 102. App. 283. 16— Wilson v. Smith, 10 Md. 67. § 259] Presumptions, Burden and Degree op Proof. 581 son charged- with the commission of crime is presumed to be innocent, and that presumption follows the accused through every stage of the prosecution. 18 While -the presumption of innocence is not evidence in the true sense, it may in a sense be called ' ' an instrument of proof," or something "in the nature of evidence," in that it determines from whom evidence shall come, and it should continue to have its logical weight in the case, not only during the taking of the testimony but during the deliberations of the jury until they arrive at a verdict. 19 § 259. Necessity of instructions as to presumption of inno- cence. Instructions on the presumption of innocence are errone- ous in civil cases, 20 but in criminal cases the defendant is entitled in every instance to an instruction on the presump- tion of innocence. 21 It is error to refuse to embody this principle in proper form in the charge to the jury, 22 and the refusal of such an instruction warrants reversal where no like instruction on the subject is given. 23 If, however, an instruction substantially embodying the principle is given, the court may properly decline to give any further instructions on the subject. Thus, where the 18— Potts v. Com., 113 Va. 732; 111. 155; People v; Spencer, 171 111. Holt v. United States, 218 U. S. 245, App. 237. 54 L. Ed. 1021, 2b Ann. Cas. 1138. Indiana. — Farley v. State, 127 Ind. 19 — Monagham v. State, 10 Okla. 419; Aszman v. State, 123 Ind. 347, Cr. 89, 134 Pac. 77. 8 L. E. A. 33n; Castle v. State, 75 20 — Riesen v; Riesen, 148 111. App. Ind. 146; Line v. State, 51 Ind. 172; 460. Long v. State, ,46 Ind. 583. 21 — Monagham v. State, 10 Okla. Nebraska. Long v. State, 23 Neb. Cr. 89, 134 Pac. 77. 33. 22 — Alabama. Salm v. State, 89 Texas. Hutto v. State, 7 Tex. Ala. 56. App. 44; Maee v. State, 6 Tex. App. Florida. Long v. State, 42 Fla. 470; Coffee v. State, 5 Tex. App. 545; 509; Reeves v. State, 29 Fla. 527; Hampton v. State, 1 Tex. App. 652. Houston v. State, 24 Fla. 356. 28 — Larrance v. People, 222 111. Illinois. — Larrance v. People, 222 155. 582 Instructions to Juries. [§ 259 court charged: ' ' The defendant began on his trial with the presumption of innocence in his favor, and that presumption remains until removed by sufficient proof," — it was not error to decline a request that "the defendant is presumed to be innocent, and that presumption remains with and fully protects him until it is removed by the proof." 2i And it is not error to refuse an instruction that the legal presumption of innocence is to be regarded by the jury as a matter of evidence, where they have been charged that the law presumes every man innocent until he is proven guilty by proper legal evidence, and that, if they have any reason- able doubt as to the guilt of defendant arising from the evi- dence, they should acquit. 25 Where the accused is either guilty or entirely innocent, a refusal to instruct that a failure to prove a motive for the commission .of the crime would raise a strong presumption that the accused was innocent is proper, the court instruct- ing that the absence of motive would be a circumstance for the jury to consider. The defendant is presumed innocent in any case. 20 So, when such an instruction is given, the court may prop- erly refuse an instruction that the mere returning of an indictment raises no presumption of the guilt of the accused, and that there can be no conviction until they are satisfied, beyond a reasonable doubt, of his guilt, without reference to the nature of the indictment. 27 An instruction that, "where there are two presumptions, — one in favor of innocence, and the other in favor of a crim- inal course, — the one in favor of innocence must prevail," may be properly refused. The only presumption in a crimi- nal case is of innocence of the defendant until guilt is estab- lished beyond a reasonable doubt, and it is sufficient if the court has so charged the jury. There cannot be two pre- 24 — Smith v. State, 63 Ga. 170. 26— State v. Nordstrom, 7 Wash. 25— Wooten v. State, 24 Fla. 335, 506, 35 Pao. 382. 1 L. R. A. 819; State v. Hudspeth, 27 — Aszman v. State, 123 Ind. 347; 159 Mo. 178. 8 L. R. A. 33n. § 260] Peesumptions, BtJrden and Degbee oe Peoob. 583 sumptions in a criminal case. The accused is presumed to be innocent until his guilt is established "beyond any reason- able doubt, and, if the court so charges, the defendant can- not complain. 28 Where the jury have been told that there is a legal pre- sumption of innocence which entitled the accused to an acquittal unless overcome by the evidence, a refusal to repeat the idea in different language, suggested by counsel for the accused, though such language may have more defi- nitely impressed such idea upon the minds of the jurors, is not reversible error. This is in accordance with the general rule that though it is advisable to give special in- structions requested on leading points in the case, if such instructions are more specific than the general charge cov- ering the same points, yet the refusal of the request will not work a reversal if the general charge can be understood by persons of ordinary comprehension. 29 But an instruction that the fact that an indictment was found by the grand jury, and the indictment itself cannot be considered, is objectionable in form, and the court should have given in lieu thereof defendant's request for an instruc- tion that the indictment is a mere formal charge against defendant, and is not, of itself, any evidence of defendant's guilt. 30 § 260. Same— Effect of giving proper instructions as to rea- sonable doubt. There is a want of unanimity of judicial opinion as to whether the failure to instruct that a defendant is presumed innocent until his guilt is established will constitute revers- ible error in and of itself, where the court properly and fully instructs the jury on reasonable doubt. It has been 28 — People v. Douglass, 100 Cal. 30— State v. Hollingsworth, 156 1, 34 Pac. 490. Mo. 178. 29— Murphy v. State, 108 Wis. 111. 584 Instructions to -Juries. [§ 260 so held by the Supreme Court of the United States, 31 and the weight. of authority is to the effect that instructions on the question of reasonable doubt, though correctly given, cannot be regarded as covering the subject of the presump- tion of innocence, and that it is error to refuse a separate instruction on the latter subject. 32 But it is to be noted that some states have statutes requir- ing the presumption of innocence to be stated. 33 In one state it has been held that where the court omits to instruct, as required by statute, that "defendant is pre- sumed to be innocent until the contrary is proved, ' ' excep- tion must be taken to such omission before the jury retire to consider their verdict, in order to make the error available. 34 In Michigan, the refusal of an instruction as to the pre- sumption of innocence has been held error, but the failure to so instruct, when a charge on the subject was not re- quested, has been held not error, 35 and similar holdings have been made in Texas. 36 In the former state the decisions do not seem to be entirely harmonious. The earlier decisions hold, without qualifica- tion, that the failure of the court to instruct the jury on the presumption of innocence, whether requested or not, is reversible error, 37 but later decisions qualify this rule. In one of them it is said that a conviction will not necessarily 31 — Coffin v. United States, 156 35— People v. Graney, 91 Mich. U. S. 432, 39 L. Ed.- 481. 646; People v. Potter, 89 Mich. 353. 32 — People v. Macard, 73 Mich. 15; * 36 — It is always advisable to give, McMullen v. State, 5 Tex. App. 577; in charge to the jury, the presump- Black v. State, 1 Tex. App. 368; tion of innocence, but an omission to Vaughan v. Com., 85 Va. 671; Coch- do so, when not asked, is not ground ran v. United States, 157 U., S. 286, for reversal. Frye v. State, 7 Tex. 39 L. Ed. 704; Coffin v. United App. 94; Hutto v. State, 7 Tex. App. States, 156 U. S. 432, 39 L. Ed. 481. 44. 33— Burns' Ann. St. 1914, §2137; 37— People v. Potter, 89 Mich. Willson's Tex. Cr. St., Code Cr. Proc. 353; People v. Macard, 73 Mich. 15; Art. 716. People v. Murray, 72 Mich. 10; 34 — Murray v. State, 26 Ind. 141. People v. De Fore, 64 Mich. 701. § 260] Presumptions, Burden and Degree of Proof. 585 be reversed in every ease where, there being no ..request for an instruction on the point, and the court's attention not being called thereto, the jury is not informed in so many words that the presumption of innocence remains with the accused until he is proved guilty. 38 And in this case and others it was held, if an instruction on the subject of reasonable doubt was given, a conviction would not be reversed for failure to instruet on the pre- sumption of innocence, in the absence of a request for such instruction. 39 In Illinois it has been held that where the jury were in- structed orally by agreement, and no request was made for such an instruction, and the court's attention was not called to its omission to charge on this subject, there was no error. 40 On the other hand, some courts hold expressly that it is not error to refuse a charge as to the presumption of inno- cence where the court correctly instructs on the doctrine of reasonable doubt. 41 In one case it was stated that the doctrines of presump- tion of innocence and reasonable doubt are so closely re- lated that it is not reversible error to omit to instruct on the law of presumption of innocence, if .the court fully instructs on reasonable doubt. 42 In Alabama and California, the presumption of innocence and reasonable doubt are seemingly treated as synony- mous. 43 A charge "that defendant is presumed to be innocent until his guilt is established by legal evidence beyond a 38 — People v. Graney, 91 Mich. 514; State v. Young, 105 Mo. 634 646. State v. Heinze, 66 Mo. App. 135 39 — People v. Ostrander, 110 Mich. State v. Heinze, 2 Mo. App. 1314 60; People v. Smith, 92 Mich. 10; Morehead v. State, 34 Ohio St. 217 People v. Graney, 91 Mich. 646. State v. Cline, 27 S. D. 573. 40 — Willams v. People, 164 111. 42 — State v. Douglas, 258 Mo. 281. 481. , 43 — Moorer v. State, 44 Ala. 15; 41 — Stevens v. Com., — Ky. — , Ogletree v. State, 28 Ala. 693; Peo- 45 S. W. 76; State v. Kennedy, 154 pie v. Lenon, 79 Cal. 625, 21 Pae. 967. Mo. 268; State v. Harper, 149 Mo. 586 Instructions to Juries. [§ 260 reasonable doubt, and, if yOu have a reasonable doubt of his guilt, you will find him not guilty," renders it unnecessary to give a requested charge "that the burden is upon the state throughout to establish every constituent element of the offense, and never shifts from state to defendant. ' ' 44 And the accused cannot complain of the failure of the court to further charge "that the burden of proof never shifts from the state to the defendant, but is upon the state throughout to establish every constituent element of the offense. ' ' 45 § 261. Sufficiency of instructions as to presumption of inno- cence. It has been held proper to instruct that "the defendant is presumed to be innocent;" 46 that "the accused must be presumed innocent until his guilt is established by legal evidence;" 47 that the presumption of innocence prevails throughout the trial, and that it is the duty of the jury, if possible, to reconcile the evidence with this presumption ; 4S that "the defendant starts out in the trial with the pre- sumption of innocence in his favor and that presumption follows him throughout the trial or until evidence convinces you of his guilt beyond a reasonable doubt;" 49 that "the law raises no presumption against the prisoner, but every presumption of the law is in favor of his innocence;" 60 that "the law considers everybody innocent until the con- trary is proven beyond a reasonable doubt;" 51 that "the accused is always presumed to be innocent until his guilt 44— Huggins v. State, 42 Tex. Cr. 48— Castle v. State, 75 Ind. 146. App. 364. 49— Paxton v. State, 108 Ark. 316. 45 — Lewis v. State (Tex. Cr. 50— Territory v. Burgess, 8 Mont. App.), 59 S. W. 886. 57, 1 L. E. A. 808, 19 Pae. 558. 46 — Line v. State, 51 Ind. 172; 51 — State v. Duck, 35 La. Ann. Long v. State, 46 Ind. 582; Berry v. 764; Gallaher v. State, 28 Tex. App. State, 4 Okla. Cr. 202, 31 L. E. A. 247; Holt v. United States, 218 U. S. (N. S.) 849, 111 Pac. 676. 245, 54 L. Ed. 1021, 20 Ann. Cas. 47— Mace v. State, 6 Tex. App. 1138. 470. § 261] Presumptions, Burden and Degree oe Prooe. 587 is established by competent evidence beyond a reasonable doubt;" B2 that, "in the absence of evidence to the contrary, the law presumes every one innocent; and this legal pre- sumption of innocence is a matter of evidence, to the benefit of which the party accused is entitled." 53 So, on a trial for murder, where it was admitted that defendant was guilty of manslaughter, but the theory of the defense was that he was innocent of the higher offense charged, because of a want of criminal intent, a charge which gives to defendant the benefit of the presumption of innocence of such intent, and the benefit of any reasonable doubt the jury might entertain as to the intent with which he acted, is not open to the objection that the court did not instruct the jury that the presumption of innocence was with the defendant. 54 An instruction on this subject should not invade the prov- ince of the jury, and should not extend beyond a plain state- ment of the law applicable to the case. 55 Philosophic disquisition on the presumption of innocence or dissertation upon the nature of evidence should always be omitted. 56 A qualifying statement "that the presumption of inno- cence is not evidence and does not partake of the nature of evidence" may easily confuse and mislead the jury. 57 An instruction that it is the duty of the jury to reconcile the evidence with the presumption of innocence, if possible, has been held improper, 58 and an instruction that .the ' ' ac- cused is entitled to the legal presumption in favor of his innocence, which in doubtful cases is always sufficient to 52 — Templeton v. State, 5 Tex. 56 — Monagham v. State, 10 Okla. App. 398; Northcutt v. State, 70 Cr. 89, 134 Pac. 77. Tex. Cr. App. 577. 57— Monagham v. State, 10 Okla. 53— Garrison v. State, 6 Neb. 285. Cr. 89, 134 Pac. 77. 54 — People v. Harper, 83 Mich. 58 — People v. Darr, 179 111. App. 273. 130. 55 — Monagham v. State, 10 Okla. Cr. 89, 134 Pac. 77. 588 Instructions to Juries. [§ 261 turn the scale," is properly refused, as it does not tell the jury when a case is doubtful. 59 The following instructions have also been disapproved: That "the defendant, though indicted for perjury, is just as innocent of the crime as though not indicted;" 60 that "the prisoner is presumed to be innocent until his guilt is established by competent evidence. After the guilt of a prisoner, for crime, is established by such evidence, then' such presumption of innocence no longer pertains ; " 61 that "the prisoner comes to trial presumed to be innocent, and this presumption extends to the close of the trial, and the jury should endeavor to reconcile all the evidence with this presumption." In condemning this instruction, the court took the view that it was no more the duty of the jury to endeavor to acquit the defendant than to convict him. 62 An instruction that if the jury believe from the evidence that the defendant bought the property "openly and pub- licly in good faith and was not concerned, or aided and abetted others in the theft of. the cow, then, if you should so find, you could not convict the defendant," is prejudi- cially erroneous in that it deprives the defendant of the benefit of the presumption of innocence. 63 If an erroneous instruction is given on this presumption, it will not be ground for reversal if no prejudice could have resulted. Thus, an instruction : ' ' Where there is a serious conflict in the testimony *as to the commission of an offense like that in this case, evidence of the previous good char- acter of the defendant should be considered by the jury, in connection with all the other evidence given on the trial, , 59 — Woodland v. State, 110 Ark. by legal evidence, and, in case of rea- 15. sonable doubt, * * * is entitled 60 — Sanders v. People, 124 111. 218. to be acquitted. ' ' ' 61— Stapp v. State, 1 Tex. App. 62— Barker v. Com., 90 Va. 820. 734, in which case the court said: Compare Castle v. State, 75 Ind. 146. "The law is that 'a defendant in a 63 — Wood v. State, — Okla. Cr. criminal cause is presumed to be in- — , 144 Pac. 391. nocent until his guilt is established § 261] Presumptions, Burden and Degree of Proof. 589 in determining whether the defendant would be likely to commit, and did commit, the offense in question; that, in doubtful cases, evidence of good character is conclusive in favor of the party accused; and if, from the evidence, you find the facts and circumstances proved or relied on to establish the defendant's guilt are in doubt, or that the intent of the defendant to commit the crime is in doubt, then, if the prisoner has by evidence satisfied you that he was a man of good character up to the time of the alleged offense in this case, the presumption of the law is that the alleged crime is so inconsistent with the former life and character of- the defendant that he could not have intended to commit such a crime, and it would be your duty to give the defendant the benefit of that presumption, and acquit him, ' ' — though it may be erroneous, since evidence of good character should be considered in connection with the other evidence, cannot possibly harm the defendant if all the evi- dence is in favor of his previous good character. 64 An instruction as to the presumption of innocence is im- i properly modified by limiting the time of such presump- tion, 65 and an instruction is incorrect which, in effect, asserts that until the jury's finding that the defendant is guilty is made known by their verdict they must continue to pre- sume that he is innocent, even after they have agreed upon the verdict to be rendered. The presumption of innocence does not survive the establishment of guilt beyond a reasonr able doubt. 66 An instruction: "The defendant, at the outset of this trial, is presumed to be an innocent man. He is not required to prove himself innocent, or to put in any evidence at all upon that subject until the prosecution has proven to your satisfaction, and beyond all reasonable doubt, that he is guilty. Now, in considering the testimony in the case, you 64: — Territory v. Burgess, 8 Mont. 66 — Beiser v. State, 10 Ala. App. 57, 1 L. R. A. 808, 19 Pac. 558. 86. 65— Flynn v. People, 222 111. 303. 590 Instructions to Juries. [§ 261 must look at that testimony, and view it in the light of that presumption, which the law clothes him with, that he is innocent, and it is a presumption that abides with him throughout the trial of the case, until the evidence convinces you to the contrary beyond all reasonable doubt," — does not tend to convey the impression that the presumption of innocence ceases to operate at the close of the evidence of the prosecution, or at any time before the jury have finally determined upon a verdict. 67 An instruction that "the jury are to presume the defend- ant innocent until his guilt is established" is not inconsistent with another instruction that "every man is presumed to be sane, and to intend the natural and ordinary consequences of his acts." 68 Where the court, after instructing on the presumption of innocence, tells the jury that the law should be fearlessly administered, and that they will fail in their duty if they fail to convict on proof of defendant 's guilt beyond a rea- sonable doubt, there is no prejudicial error, although the latter part of the instruction is in bad taste. 69 An instruction, "The defendant entered upon this trial with the presumption of innocence in his favor, and that presumption continues till the state shall satisfy you beyond any reasonable doubt of the defendant 's guilt, ' ' while open to criticism as possibly suggesting that only the evidence of the state is to be weighed, is not erroneous, especially if followed by instructions that "it is incumbent on you to consider the testimony without passion and without preju- dice, for the purpose of determining whether the defendant is guilty or not. He is entitled to the benefit of any reason- able doubt existing in the evidence in this case. If, after a full consideration of the testimony, you shall- have any reasonable doubt of his guilt, you will give him the benefit 67 — People v. Arlington, 131 Cal. 69— People v. Bowers (Cal.), 18 231, 63 Pac. 347. Pac. 660. 68— Greenley v. State, 60 Ind. 141. § 262] Presumptions, Burden and Degree of Proof. 591 of that doubt by an acquittal." Such instructions clearly indicate that the jury are to look to the entire evidence. 70 A portion of a charge stating that "if he is the man to blame, you must say so ; if he is not to blame, you must say so," is not erroneous as destroying the presumption of innocence, as the word "blame" is used as a synonym of "guilty." 71 An instruction on the presumption of innocence that ' ' every one accused of crime is by law presumed to be inno- cent unless the contrary is by the evidence proved to be true beyond a reasonable doubt," is not erroneous because the word "unless" is used instead of "until." 72 A request for an instruction that defendant is presumed to be innocent until proven guilty beyond a reasonable doubt, and that it is the duty of the jury to give the defend- ant the benefit of this presumption and to acquit him "unless they feel compelled to find. him guilty," and unless the evi- dence convicts him of guilt beyond a reasonable doubt, is properly modified by striking out the words "unless they feel compelled to find him guilty. ' ' 73 § 262. Presumption that a person intends the natural con- sequences of his acts. In some cases it has been held improper to instruct that a person is presumed to intend the natural consequence's of his own voluntary acts. While it is proper for the jury to draw such inference if they see fit and the court may so instruct, it is error to tell them that they must do so. 74 The decisions rest upon the principle that the presump- tion declared by the statute is overcome by the presump- tion of innocence and the rule as to reasonable doubt. 70— Murphy v. State, 108 Wis. 73— State v. Stubblefield, 157 Mo. 111. 360. 71— State v. Aurand, 76 Wash. 529, 74— People v. Willett, 36 Hun (N. 136 Pae. 1139. Y.) 500. 72— People v. Warfleld, 261 111. 293. 592 Instructions to Juries. [§ 262 Accordingly, on a murder trial, a charge that "the law pre- sumes that a sane man intends the natural and probable consequences of any act which he wilfully and deliberately does," is erroneous. 75 It has even been held improper to charge in the language of a statute which expressly provides that "the intention to commit an offense is presumed whenever the means used is such as would ordinarily result in the commission of the forbidden act;" 76 or in the language of another statute, which provides that, "when an injury is caused by violence to the person, the intent to injure is presumed, and it rests with the person inflicting the injury to show the accident or innocent intention." 77 Intent being an essential element of crime, an instruction declaring that, when a crime is committed, the law pre- sumes the intent, is absurd and meaningless, 78 and an in- struction that a person intends the natural consequences of an act voluntarily done, and that if defendant pointed a loaded pistol at another and fired the same at a sufficient range for the ball to penetrate his person, and the same actually passed through his arm, then the presumption would be that he intended to take his life, is erroneous, as intent is the gist of an offense of> assault with intent to com- mit murder and such intent is for the jury. 79 On a prosecution- for assault with intent to murder, a charge that selects a portion only of the facts disclosed by the testimony, and states that, if these facts are proved, "the law presumes that the act was malicious," and that defendant "intended to kill," is erroneous, because it shifts the burden of proof, and ignores the recognized distinction between civil and criminal cases, in the measure of proof. 80 75— Rogers v. Com., 96 Ky. 24. 78— State v. Painter, G7 Mo. 84. 76— Black v. State, 18 Tex. App. 79— Horton v. Pepple, 47 Colo. 252, 124. 107 Pac. 257. 77— Burney v. State, 21 Tex. App. 80— Ogletroe v. State, 28 Ala. 693. 572; Thomas v. State, 16 Tex. App. 535. § 262] Presumptions, Burden and Degree of Proof. 593 There is another line of cases which holds, however, that it is proper to instruct the jury that where a person volun- tarily and wilfully does an act he is presumed to intend all ,the natural, probable.and usual consequences of his act. 81 Accordingly, an instruction that: "The law presumes that every sane person contemplates the natural and ordi- nary consequences of his own voluntary acts, until the con- trary appears, and, when one man is found to have killed another by acts, the natural and ordinary consequence of which would be the death, if the facts and circum- stances of the homicide do not of themselves, or the evi- dence otherwise, show that it was not done purposely, or create a reasonable doubt thereof, it is to be presumed that the death of the deceased was designed by the slayer," is proper, 82 and when a homicide or an assault was com- mitted with a deadly weapon, and the act was done wilfully ' or intentionally, an instruction that the defendant must be presumed to have intended to cause death, which is the ordinary and probable consequence of such an act, has been sustained. 83 Also, in a prosecution for assault with intent to murder, it is not error to instruct that defendant is presumed to have intended the natural and proximate consequences of his acts. 84 So it is not error to refuse to charge that a knowing and wilful violation of a penal statute is necessary to a convic- tion. The prisoner is conclusively presumed to have known of the statute he was violating. 85 It has also been held that an instruction that "a person must be presumed and is presumed to intend to do what he 81 — People v. Langton, 67 Cal. 83— State v. Wisdom, 84 Mo. 177; 427, 7 Pac. 843; State v. Shelledy, 8 State v. Dickson, 78 Mo. 438. Iowa 485; Com. v. Webster, 5 Cush. 84— Krchnavy v. State, 43 Neb. (Mass.) 305. • 337. 82— Achey v. State, 64 Ind. 59. 85— Whitton v. State, 37 Miss. See also, Jackson v. People, 18 111. 379. 270; Cotton v. State, 32 Tex. 626. Blashfield Vol. 1—38 594 Instructions to Juries. [§262 voluntarily and wilfully does in fact do, and must also be presumed to intend all the natural, probable and usual con- sequences of bis own acts, ' ' is not at variance with a statute providing ' ' that a person intends the ordinary consequences of his voluntary act," in the use of the word "must." 86 § 263. Presumption of malice. It is usually error for the court to instruct that malice does or does not exist, as the question is thereby taken from the jury, and the existence of malice is usually a question of fact for the jury. 87 In an action for malicious prosecution, it is error to in- struct that the law presumes malice from a want of probable cause, 88 but it is usually held proper to instruct that the jury may infer malice from want of probable cause, 80 although it is error to instruct that malice cannot be in- ferred by the jury from want of probable cause. 90 86 — People v. Webster, 13 Cal. App. 348, 109 Pae. 637. 87 — Illinois. Hirsch v. Feeney, 83 111. 548; Harpham v. Whitney, 77 111. 32. Iowa. Hidy v. Murray, 101 Iowa 65. Massachusetts. Ellis v. Simonds, 168 Mass. 316. Missouri. Moody v. Deutseh, 85 Mo. 237. New York. Thorp v. Carvalho, 14 Misc. 554; Kingsbury v. Garden, 45 N. Y. Super. Ct. 224. Pennsylvania. Hitter v. Ewing, 174 Pa. St. 341. United States. Stewart v. Sonne- born, 98 U. S. (8 Otto) 187, 25 L. Ed. 116. 88 — Connecticut. Smith v. King, 62 Conn. 515. Illinois. Frankfurter v. Bryan, 12 111. App. 549; Bishop v. Bell, 2 111. App. 554. Kansas. Malone v. Murphy, 2 Kan. 250. North Carolina. Bell v. Pearcy, 27 N. C. 83. Oregon. Gee v. Culver, 12 Ore. 228, 6 Pac. 775. Pennsylvania. MeClafferty v. Philp, 151 Pa. St. 86; Schofield v. Ferrers, 47 Pa. St. 194, 86 Am. Dec. 532. Tennessee. Greer v. Whitfield, 4 Lea 85. Texas. Griffin v. Chubb, 7 Tex. 603, 58 Am. Dec. 85. 89 — Shaul v. Brown, 28 Iowa 45; Bradley v. Morris, 44 N. O. 397; Hogg v. Pinckney, 16 S. C. 387. Contra, Biering v. Galveston First Nat. Bank, 69 Tex. 599, holding that such charge was on the weight of the evidence. 90— Lunsford v. Dietrich, 93 Ala. 565, 30 Am. St. Rep. 79. § 263] Presumptions, Burden and Degree of Proof. 595 An instruction that malice may be inferred from the use of v a deadly weapon is proper and usual, 91 and it is proper to instruct that malice may be inferred from a wilful, wan- ton and inexcusable act, 92 but an instruction that, if certain enumerated acts were proved, the act in question was mali- cious, is erroneous. 93 It has been held proper to instruct that "the law itself implies or presumes malice from the commission of any unlawful or cruel act, however suddenly done. Hence, when a homicide is committed without any or without consider- able provocation, the law implies or infers malice. * * * Generally speaking, if the killing of a person grow out of a state of sudden mental agitation, produced by whatever cause, or is the sudden rash condition of a mind incapable, from any cause, of deliberation or reflection, malice will be presumed or implied. So, also, when a human being is killed, and no circumstances are in proof to justify or exten- uate such killing, the law, from such, killing alone, will imply or infer malice." 94 In a prosecution for malicious wounding, a refusal to instruct that "malice cannot be inferred" is not error. 95 An instruction that a malicious intent need not be proved by direct testimony, and that if the jury found that the natural and probable results of an act would be to injure or destroy the property of another, no motive appearing from the evidence, malice may be implied, if the circumstances show a wicked, depraved and Wanton spirit, is not mislead- ing, especially when followed by others, treating the sub- ject fully and liberally. 96 91— Jenkins v. State, 82 Ala. 25; 94 — Kemp v. State, 13 Tex. App. State v. Zeibart, 40 Iowa 173; State 562. v. Talbott, 73 Mo. 351. 95— Walker v. Com., 7 Ky. L. Rep. ■ 92— Mosely v. State, 28 Ga. 190; 44. State v. Williamson, 68 Iowa 351; 96— People v. Keeley, 81 Cal. 210, State v. Enslow, 10 Iowa 115. 22 Pac. 593. 93— Ogletree v. State, 28 Ala. 693. 596 Instructions to Juries. [§ 264 § 264. Presumption from unexplained possession of re- cently stolen property. Although there are decisions to the contrary, 97 the great weight of authority is to the effect that the presumption arising from the unexplained possession of recently stolen property is a presumption of fact. 98 The possession of recently stolen property may or may not be a criminating circumstance, and whether it is or not depends upon the facts and circumstances connected with such possession. It is a circumstance to be considered by the jury in connection with all the other evidence in the given case, in determining the guilt or innocence of the accused, and its weight, as evidence, like that of any other fact, is to be determined by them alone. 99 Thus it has been said that "Any presumption that may be drawn from such possession is a presumption of fact merely; 97 — See this section, post. 98— Alabama. Orr v. State, 107 Ala. 35; Malachi v. State, 89 Ala. 134; Underwood v. State, 72 Ala. 220. Arkansas. Wiley v. State, 92 Ark. 586. California. People v. Noregea^ 48 Cal. 1^3; People v. Ah Ki, 20 Cal. 178. Colorado. Brooke v. People, 23 Colo. 375, 48 Pae. 502. Georgia. Griffin v. State, 86 Ga. 257; Tucker v. State, 57 Ga. 503; Parker v. State, 34 Ga. 263. Indiana. Smith v. State, 58 Ind. 340; Howard v. State, 50 Ind. 190; Hall v. State, 8 Ind. 439; Engleman v. State, 2 Ind. 91, 52 Am. Dec. 494n. Maine. State v. Merrick, 19 Me. 398. Massachusetts. Com. v. McGorty, 114 Mass. 299. Michigan. Gablick v. People, 40 Mich. 293. Nebraska. Robb v. State, 35 Neb. 285; Grentzinger v. State, 31 Neb. 460; McLain v. State, 18 Neb. 154; Thompson v. People, 4 Neb. 529. New Hampshire. State v. Hodge, 50 N. H. 510. New York. Stover v. People, 56 N. Y. 315. Oregon. State v. Maloney, 27 Ore. 53, 39 Pac. 398; State v. Hale, 12 Ore. 352, 7 Pac. 523. Tennessee. Cook v. State, 16 Lea 461. Texas. Lockhart v. State, 29 Tex. App. 35; Lehman v. State, 18 Tex. App. 174, 51 Am. Rep. 298. Wisconsin. Baker v. State, 80 Wis. 416. 99 — People v. Noregea, 48 Cal. 123; People v. Ah Ki, 20 Cal. 178; People v. Chambers, 18 Cal. 383; Watkins v. State, 2 Tex. App. 73; State v. Walters, 7 'Wash. 246, 34 Pac. 938, 1098; State v. Humason, 5 Wash. 499, 32 Pac. 111. § 264] Presumptions, Burden and Degree of Proof. 597 in other words, it is only an inference that one fact may exist from the proof of another, and does not amount to a rule of law." 1 "It is obvious that a party cannot, as a matter of law, be adjudged guilty of larceny upon proof that property has been stolen and recently thereafter found in his possession, in the absence of any explanation. Such proof shows a strong probability of guilt; but it is for the jury to determine its force, after due consideration of the kind of property, the length of time that may have elapsed between the tak- ing and finding it in the possession of the accused, and the probability, from the character of the property and other circumstances of the case, that the accused, if innocent, could show how he acquired possession. ' ' 2 In some states it is held that the presumption of guilt growing out of the recent possession of stolen property is a presumption of law, and, in the absence of other rebutting evidence, must be met by proof on the part of the accused accounting for his possession in a manner consistent with his innocence, or it will become conclusive against him; that it is not a mere presumption of fact, to be weighed with other evidence in the case. 3 This holding is based on the statement of Mr. Greenleaf in his work on Evidence, where he says: "Possession of the fruits of crime recently after its commission is prima facie evidence of guilty possession, and, if unexplained either by direct evidence, or by the attending circumstances, or by the character and habits of life of the possessor, or other- wise, it is taken as conclusive." 4 1 — Smith v. State, 58 Ind. 340; State v. Kelly, 73 Mo. 608; Belote v. State v. Hodge, 50 N. H. 510; State State, 36 Miss. 120. See also, State v. Walters, 7 Wash. 246, 34 Pac. 938, v. Kelly, 57 Iowa 644; Unger v. 1098; Ingalls v. State, 48 Wi*?. 656; State, 42 Miss. 642; State v. Butter- State v. Snell, 46 Wis. 524; Graves 'field, 75 Mo. 297; United States v. v. State, 12 Wis. 591. Wiggins, 14 Pet. (U. S.) 334, 10 L. 2— Stover v. People, 56 N. Y. 317. Ed. 481. 3— State v. Good, 132 Mo. 114; 4—1 Greenl. Ev. §34. 598 Insteuctions to Jukies. [§ 264 It has been held proper, where this. view prevails, to in- struct the jury that, "where property has been stolen,' and recently thereafter the same property, or any part thereof, is found in the possession of another, such person is pre- sumed to be the thief, and, if he fails to account for his possession of such property in a manner consistent with his innocence, this presumption becomes conclusive against him. ' ' 5 In the case in which this instruction was approved, no evidence was submitted as to the good character of defend- ant. It has been held that such an instruction would be too narrow where such evidence is given, and that the evidence of good character should be submitted to the jury together with that of recent possession, the view being taken that such evidence may be sufficient to rebut the presumption of guilt. 6 Where the fact of the larceny is not disputed, and it ap- pears that the property was found in defendant's possession shortly after its disappearance, an instruction making his possession a presumption of guilt against him, to be rebutted by him, but not beyond a reasonable doubt, and requiring conviction unless it be rebutted by certain designated kinds of evidence, or by the combined weight of one or more of the kinds of evidence "just mentioned," is proper. 7 § 265. Conflict of authority as to instructions on subject of possession of stolen property. In the states which repudiate the doctrine that the pre- sumption arising from the unexplained possession of re- cently stolen property is a presumption of law, and which assert that such presumption is one of fact, there is a want of judicial harmony as to what instructions on the subject may properly be given. In one state it has been held error 5— State v. Kelly, 73 Mo. 608. v. Crank, 75 Mo. 406; State v. Sid- e—State v. Kelly, 57 Iowa 646; ney, 74 Mo. 390. State v. Kennedy, 88 Mo. 341; State 7— State v. Good, 132 Mo. 114. § 266] Presumptions, Burden and Degree of Proof. 599 to instruct the jury that possession of recently stolen prop- erty, unexplained, is of itself sufficient to authorize a con- viction. 8 But an instruction to this effect^ has been sustained in other states, especially in Illinois, 9 and in such latter state it has been held that the jury may be told that "the pos- session of stolen property soon after the commission of a theft is prima facie evidence of the guilt of the person in whose possession it is found." 10 But such an instruction has been held erroneous in Ala- bama and Nebraska. 11 Thus it has been said that: "Whether it was prima facie or conclusive was solely for the jury to determine, unaided by any suggestions of the court upon that proposition of fact." 12 § 266. Sufficiency of instructions as to possession of stolen property. An instruction that "if the defendants were found in pos- session of any part of the property described in the indict- ment soon after such property was stolen, such possession, unless satisfactorily explained, was a circumstance to be considered, in connection with other suspicious facts, in determining their guilt or innocence," has been held proper. 13 8 — People v. Ah Ki, 20 Cal. 178; actual thief, and, unless this pre- People v. Chambers, 18 Cal. 383; Peo- sumption is rebutted, * * * [the pie v. Levison, 16 Cal. 98, 76 Am. jury should] find the defendant De< 5- 505. guilty," is erroneous as directing 9— Keating v. People, 160 111. 483; the jury to find defendant guilty Smith v. People, 103 111. 82; Gold- without submitting an hypothesis stein v. People, 82 N. Y. 231. based on the evidence embodying 10— Keating v. People, 160 111. all the facts necessary to establish 483; Smith v. People, 103 111. 82. guilt. In Hix v. People, 157 111. 382, it was 11— Orr v. State, 107 Ala. 35; Dob- held that an instruction ' ' that the son v. State, 46 Neb. 250. possession of property recently 12 — Dobson v. State, 46 Neb: 250. stolen is of itself prima facie evi- 13 — People v. Pagan, 66 Cal. 534, dence that the person in whose pos- 6 Pac. 394. session the property is found is the 600 Instructions to Juries. [§ 266 And it is not improper to instruct that "the possession of stolen property is not alone sufficient to convict. It is merely a guilty circumstance which, taken in connection with other testimony, is to determine the question of guilt." 14 An instruction that "the presumption that the possessor of recently stolen property is the thief is not a presumption of law, and a weak one of fact. It is not at all conclusive, and of itself is not sufficient for conviction, ' ' — is properly refused, as invading the province of the jury to weigh the evidence. 15 And it has also been held that an instruction that unex- plained recent possession, "without other circumstances tending to show felonious intention, * * * does not amount to proof, beyond a reasonable doubt, of a larceny, committed by the defendant," is properly refused as an invasion of the province of the jury. 16 § 267. Instructing that possession of recently stolen prop- erty raises presumption of guilt. In some jurisdictions, an instruction that "possession of recently stolen property is presumptive evidence of the guilt of the possessor" is considered to trench on the prov- ince of the jury, and should not be given. 17 It has also been held that an instruction that, "when the state relies upon the possession of recently stolen property as a presujnption of guilt," etc., is erroneous, as leading the jury to infer that guilt will be presumed from such pos- session. 18 14 — People v. Rodundo, 44 Cal. .Foster v. State, 1 Tex. App. 363; Pol- 541. • lard v. State, 33 Tex. Cr. App. 197; 15— Reed v. State, 54 Ark. 621. . Baker v. State, 80 Wis. 416. See 16 — Underwood v. State, 72 Ala. also, Sartorius v. State, 2 Cushm. 220. (Miss.) 602. 17— McCoy v. State, 44 Tex. 616 Alderson v. State, 2 Tex. App. 10 Hannah v. State, 1 Tex. App. 578 18 — Lockhart v. State, 29 Tex. App. 35. § 267] Presumptions, Burden and Degree of Proof. 601 But in some jurisdictions the jury may be properly in- structed that the possession of recently stolen property is presumptive evidence of guilt. Thus it has been held proper to instruct that ' ' the possession of property, proven to have been recently stolen, is evidence from which the jury may infer that the person in whose possession such property is found is guilty of the theft, provided that such possession is not explained; and so, when a certain amount of property is proven to have been stolen at the same time, and soon thereafter a portion of such stolen property is found in possession of the defendant, such possession, if un- explained, is evidence from which the jury may infer that the defendant is guilty of the larceny of the entire amount of property then proven to have been stolen. ' ' 19 So, an instruction that "Whenever it is established that a larceny has been committed, and the stolen goods are immediately afterwards found in the possession of a person, that fact is presumptive evidence that the person is guilty of the larceny of the character charged to have been com- mitted, ' ' is proper. 20 And an instruction, that "possession of stolen property immediately after the theft, if an unsatisfactory account is given as to its possession, affords presumptive evidence of guilt, ' ' the whole matter of the degree of force the pre- sumption ought to have being submitted to the jury as a matter of fact, is proper. 21 Where property, when stolen, was all in a valise, and of necessity was taken at the same time, and by the same per- son, an instruction that if defendant was, within a few hours after the larceny was committed, found in possession of part of the stolen property, the presumption would arise that he stole all described in the indictment, was proper. 22 1'9— State v. Henry, 24 Kan. 460. 21— Com. v. McGorty, 114 Mass. 20 — Tucker v. State, 57 Ga. 503. 299. See also, McLain v. State, 18 Neb. 22 — State v. Wilson, 95 Jowa 341. 154. 602 Instetjctions to Jueies. [§ 267 The court may instruct ' ' that the jury could consider the fact of the recent possession of stolen goods, unexplained, if they were satisfied from the evidence that such was the fact, as a circumstance showing that the party having such possession was the thief." 23 An instruction that unexplained possession of recently stolen property is presumptive evidence of guilt, and that if the jury are satisfied, from all the evidence, that the possession was a guilty possession, he should be convicted, is erroneous, since under it the defendant could be convicted of receiving stolen property, knowing it to have been stolen, —a crime with which he was not charged. 24 It has been held proper to refuse a charge that the fact that defendant had in his possession a portion of certain money, alleged to belong to the prosecuting witness, raised no presumption that he received it, knowing it to have been stolen, if it was stolen, because it states the law incorrectly, and because the recent possession of stolen property does impose on the possessor the onus of explaining the pos- session. 25 § 268. Instructing that possession of recently stolen prop- erty is strong evidence of guilt. Whether the possession of recently stolen property is strong evidence, or only slight evidence, tending to show guilt, is a matter for the jury to pass upon, and not a ques- tion for the court to determine, 26 and it has been held error to instruct: "That the possession of recently stolen prop- erty is regarded £n law as a criminating circumstance, tend- ing to show that the possessor stole the property, unless the facts and circumstances surrounding or connected with said possession, or other evidence, explains or shows said possession might have been acquired honestly;" 27 that 23^Shepperd v. State, 94 Ala. 104. 26— People v. Ah Sing, 59 Cal. 400. 24— State v. Tucker, 76 Iowa 232. 27— State v. Walters, 7 Wash. 246, 25— Martin v. State, 104 Ala. 71. 34 Pac. 938, 1098. § 270] Pkesumptions, Burden and Dbgbbe of Proof. 603 "the possession .of stolen property, supported by other evi- dence tending to show guilt, is a strong circumstance tend- ing to show guilt;" 28 that "such possession, if proven to the satisfaction of the jury, and unexplained by the defend- ant, supported by other circumstances tending to show guilt, is a strong circumstance tending to show guilt;" 29 or "that the possession of stolen property, supported by other circumstances and other evidence tending to show guilt, is a strong circumstance in the case. ' ' 30 § 269. Instructing that burden of explaining possession is on defendant. The giving of an instruction that the possession of re- cently stolen property casts on the defendant the burden of explaining how he acquired it has been held erroneous in some states, 31 but in other jurisdictions such an instruc- tion may be given. 32 An instruction that the burden is on defendant to give a satisfactory explanation of his possession of recently stolen property will not be ground for reversal, where the court, on exceptien being taken to such instruction, further tells the jury that it had repeatedly stated in its charge that defendant should be acquitted if the jury had any reason- able doubt as to his guilt. 33 §270. Instructions as to defendant's explanation of pos- session. The presumption arising from the possession of recently stolen property may be rebutted by evidence explaining 28 — People v. Cline, 74 Cal. 575, Martinez v. State, 41 Tex. 164; Leh- 16 Pac. 391. man v. State, 18 Tex. App. 174, 51 29 — People v. Titherington, 59 Oal. Am. Rep. 298. See also, Blankenship 598; State v. Sullivan, 9 Mont. 174, v. State, 55 Ark.' 244. 22 Pac. 1088. 32— Cooper v. State, 87 Ala. 135; 30— People v. Ah Sing, 59 Cal. 400. State v. Garvin, 48 S. C. 258. 31 — Brooke v. People, 23 Colo. 375, 33— Brooke v. People, 23 Colo. 375, 48 Pae. 502; Griffin v. State, 86 Ga. 48 Pac. 502. 257; Kobb v. State, 35 Neb. 285; 604 Instructions to Juries. [§ 270 such possession, 34 as where the defendant . gives a reason- able and probable explanation of the possession, 35 and in such case the defendant is entitled to an instruction to this effect as a part of the law of the case, 36 and a failure or refusal to give such instruction, when warranted by the evi- dence, is erroneous. 37 Although it has been held that such error is not ground for reversal where there is no proba- bility that the charge would have affected the verdict in any way. 38 It is proper to instruct that the explanation of one charged with larceny as to his possession of stolen prop- erty may be shown to be false by circumstantial evi- dence, if there is evidence on which the instruction can be based, 39 but it has been held that if the court gives a full charge as to circumstantial evidence, a 'special charge asked by defendant on the possession of property recently stolen need not be given. 40 It has been held not' prejudicial error to refuse an instruc- tion that possession of stolen goods is only presumptive evi- 34 — If the explanation, when tea- Johnson v. State, 12 Tex. App. 385. tified to before the jury, seems to 36 — Schultz v. State, 20 Tex. App. them to be reasonable, and is not 308; Sullivan v. State, 18 ■ Tex. shown to be false, the presumption App. 623; Miller v. State, 18 Tex. against the accused from his pos- App. 38; Wright v. State, 35 Tex. session is rebutted, and the jury are Cr. App. 470. not justified in convicting without 37 — Windham v. State, 19 Tex. further evidence against him. Perry App. 413; Hyatt v. State, 32 Tex. v. State, 41 Tex. 483. ■ Cr. App. 580. 35 — The statement of a defendant No instruction of this nature with regard to the character of his should be given if the evidence does right to the property, when first not warrant it. Wilson v. State found in possession of stolen prop- (Tex. Cr. App.), 34 S. W. 284; Bald- erty, and explanatory of his posses- win v. State, 31 Tex. Cr. App. 589 sion of it, if reasonable and prob- Conners v. State, 31 Tex. Cr. App able, devolves the , onus upon the 453. state to show that such explanation 38 — Teague v. State (Tex. Cr, is false. Perry v. State, 41 Tex. 483; App.), 20 S. W. 367. Galloway v. State, 41 Tex. 289; Gar- 39— Franklin v. State, 37 Tex. Cr, cia v. State, 26 Tex. 209, 82 Am. Dec. App. 312. 605; Miller v. State,. 18 Tex. App. 38; 40— Bonners v. State (Tex. Cr, Sitterlee v. State, 13 Tex. App. 587; App.), 35 S. W. 650. § 270] Presumptions, Burden and Degbee of Proof. 605 dence of guilt, where an instruction is given that the jury- may consider defendant's testimony and his theory account- ing for his possession, and that if the evidence in his behalf raises a reasonable doubt in their minds as to his guilt, he should be acquitted. 41 Where the court instructs, in a prosecution for larceny of a horse, ' ' If you entertain a reasonable doubt whether the defendant got the said horse from a certain person for the purpose of pawning him or borrowing money, and giving the horse as security for its payment, then find him not guilty," it is proper to refuse to instruct "that when the defendant, when first accused of the theft of the horse, gave a statement that was reasonable, and probably true, it was the duty of the state to show that said statement was false, and, unless so shown, it was their duty to acquit. ' ' 42 An instruction that "you are at liberty to consider, the several statements made by the defendant as to the manner in which he came in possession of it (stolen property) in order to enable you to arrive at the guilt or innocence of the defendant, and, if said statements appear to be reason- able and consistent, it is a circumstance in his 1 favor, but, if the said statements are unreasonable and false, it is a circumstance against him," is erroneous as invading the province of the jury to weigh the evidence. 43 And an instruction that "if you believe, from the evi- dence in this case, that the property alleged to have been stolen was so stolen, and recently thereafter was found in the, possession of the defendant, and that the defendant, when thus found in the possession of the same, gave an ex- planation of his said possession which appears reasonable and probably true, then, before you will be warranted in finding a verdict of guilty in this case, you must be satis- fied from the evidence, beyond a reasonable doubt, that the 41 — People v. Walters, 76 Mich. 195. 43 — Merritt v. State, 2 Tex. App. 42 — Gilmore v. State (Tex. Cr. 182. App.), 33 S. W. 120. 606 Instructions to Juries. [§ 270 other testimony in the case establishes the falsity of the ex- planation so made by the defendant," is equivalent to tell- ing the jury that if the defendant was found in the recent possession of the stolen horse, and he gave an account of his possession, and the state showed its falsity, this circum- stance alone authorized the jury to convict the defendant, and is a charge upon the weight of the evidence. 44 So, an instruction that ' ' if you believe from the evidence that the property alleged in the indictment to have been stolen (if stolen) was recently thereafter found in the pos- session of the defendant, and that the circumstances con- nected with his possession when first called upon were of such a character as to demand of him an explanation of his possession, and he failed or refused to make such explana- tion, and that before you would be warranted in finding him guilty from such circumstances of possession alone, you must be satisfied that his possession was personal, was recent, was exclusive, was unexplained, and that it involved a distinct and conscious assertion of property by the defend- ant," amounts to telling the jury that they are authorized to find the defendant guilty by the mere fact of being found in possession of stolen property recently after its being stolen, and is erroneous if the possession is connected with circumstances giving character to it. 45 An instruction: "The jury are instructed that, where a burglary is connected with a larceny, mere possession of stolen goods, without any other evidence of guilt, is not to be regarded as prima facie or presumptive evidence of the burglary; but where goods have been feloniously taken by means of a burglary, and they are immediately or soon thereafter found in the actual or -exclusive possession of a person, who gives a false account, or who refuses to give any account, of the manner in which the goods came into his 44— McCarty v. State, 36 Tex. Cr. 45 — Pace v. State (Tex. Cr. App.), App. 135; Wilson v. State (Tex. Cr. 31 S. W! 173. App.), 34 S. W.-284. § 273] Presumptions, Burden and Degree of Proof. 607 possession, proof of such possession and guilty conduct is evidence tending to prove not only that he stole the goods, but that he made use of the means by which access to them was obtained. There should be some evidence of guilty conduct, besides the bare possession of the stolen property, before the presumption of burglary is superadded to that of larceny," — is proper as a statement of a legal principle in the abstract. 46 § 271. Presumptions as to sanity. Considerable conflict exists in the reported cases as to the burden of proof upon the question of insanity as a defense to crime, and as to the quantity of proof necessary to suc- cessfully maintain such burden. Many instructions and requests for instructions have been condemned because plac- ing the burden of proof upon the wrong party, or requiring too great a quantum of evidence to sustain the burden. Such instructions are erroneous merely because they state an incorrect proposition of law. It is beyond the scope of this book to consider the correctness of the law announced in the instructions, as such questions are not peculiar to instructions, but are the same, however they arise, — wheth- er in the instructions,. the pleadings, or otherwise. % 272. Presumption that defendant is feigning insanity. An instruction that if the jury found that the prisoner was watching to see whether he was observed, and regulat- ing his conduct accordingly, it would raise a strong pre- sumption that the prisoner was feigning insanity, has been held proper. 47 § 273. Instructing that defense of insanity is to be viewed with care. An instruction that "the defense of insanity is one which may be and sometimes is. resorted to in cases where the 46 — Taylor v. Territory, 7 Ariz, the instruction was applicable to the 234, 64 Pae. 423. In this case, how- evidence, ever, the reviewing court held that 47 — McKee v. People, 36 N. Y. 113. 60S Instructions to Juries. [§ 273 proof of the overt act is so full and complete that any other means of avoiding conviction and escaping punishment seems hopeless. "While therefore this is a defense to be weighed fully and justly and when satisfactorily established must recommend itself to the favorable consideration of the humanity and justice of the jury, they are to examine it with care lest an ingenious counterfeit of such mental disease or disorder should furnish protection to guilt, ' ' has • been disapproved in the later cases 48 and held erroneous in some states. 49 Such an instruction has been held erroneous as casting the burden of satisfactorily establishing insanity on the defendant, and as disparaging such defense. 50 § 274. Presumption that all men are sane. An instruction that the law presumes every man to be sane, and that insanity can be proved only by clear and unexceptional evidence, asserts a correct legal proposition, and is not erroneous as shifting from the court to the jury the question of the competency of the evidence. 51 An instruction that the law presumes a man to be sane until the contrary is shown, and imposing the burden of proving insanity as a defense to crime on those who assert it, is not erroneous, 52 and it is proper to instruct that ' ' every man is presumed to be sane, and to intend the natural and usual consequences of his own acts." 53 48 — Approved in California and 51 — Dominick v. Randolph, 124 Indiana but later disapproved. See Ala. 557. People v. Methever, 132 Cal. 326, 64 52— State v. Clevenger, 156 Mo. Pae. 481; Aszman v. State, 123 Ind. 190; State v. Pagels, 92 Mo. 300; 347, 8 L. R. A. 33n. State v. McCoy, 34 Mo. 531, 86 Am. 49 — Held erroneous in Idaho and Dec. 121. Montana. State v. Shuff, 9 Idaho 53 — Sanders v. State, 94 Ind. 147; 115, 72 Pac. 664; State v. Crowe, 39 Guetig v. State, 66 Ind. 94, 32 Am. Mont. 174, 18 Ann. Cas. 643, 102 Pac. Rep. 99n; State v. Bruce, 48 Iowa 579. 530, 30 Am. Rep. 403; State v. Red- 50— State v. Crowe, 39 Mont. 174, dick, 7 Kan. 152; State v. Pagels, 92 18 Ann. Cas. 643, 102 Pac. 579. Mo. 300. § 277] Presumptions, Bukden and Degbee op Proof. 609 It is also proper for the court to refuse to charge that the prosecution must affirmatively establish, as part of their case, that defendant was sane, whenever the defense is insanity, since sanity is presumed, and the burden is on the defendant to overcome that presumption in the first instance. 54 § 275. Conflicting' presumption of innocence. A charge that "the presumption of innocence is so far of greater strength than that of sanity that, when evidence appears tending to prove insanity, it compels the prosecu- tion to establish, from all the evidence, mental soundness beyond a reasonable doubt, ' ' has been held erroneous. 55 § 276. Presumption as to continuance of insanity. In a criminal trial, where insanity is relied on as a defense, it is proper to refuse to instruct the jury that if the defend- ant was insane a short time before the commission of the act, the presumption is that he was insane when he com- mitted it. 56 An instruction that "insanity, when once shown to exist in an individual, is presumed to continue until the contrary is shown by the evidence," is not erroneous because omit- ting the words "beyond a reasonable doubt," where there is a following instruction that ' ' evidence rebutting * * * the presumption of sanity need not, to entitle defendant to acquittal, preponderate in his favor. " 57 A refusal to instruct that insanity of a permanent type, proved to have once existed, is presumed to have continued, has been held error. 58 § 277. Presumptions arising from flight. Ordinarily, the flight of a person suspected or charged with crime is a circumstance which the jury are authorized 54_People v. Garbutt, 17 Mich. 9, 56— People v. Smith, 57 Cal. 130. 97 Am. Dee. 162. 57— Grubb v. State, 117 Ind. 277. 55— Guetig v. State, 66 Ind. 94, 32 58— State v. Wilner, 40 Wis. 304. Am. Eep. 99n. Blashfield Vol. 1—39 610 Insteuctions to Jueies. [§ 277 to consider, with other evidence in the cause, 59 as tending in some degree to prove a consciousness of guilt, 60 and the court may give the jury certain instructions on this subject provided there is evidence on which to base them. A de- fendant's admission, when arrested, that he was running away is quite as effectual as independent proof that he was attempting to flee, and justifies an instruction as to flight. 61 § 278. Sufficiency of instructions as to presumption arising from flight. An instruction which permits the jury to consider flight as substantive evidence of guilt is erroneous, 62 but the jury may be told that ' ' evidence tending to prove flight has been offered, and may be considered by them as a circum- stance bearing on the guilt of the accused, with all the other evidence in the case." 63 So, it has been held proper to instruct that "the flight of a person immediately after the commission of a crime, or after a crime is committed with which he is charged, is a circumstance in establishing his guilt, not sufficient, of itself, to establish his guilt, but a circumstance which the jury may consider in determining the probabilities for or against him, — the probability of his guilt or innocence. The weight to which that circumstance is entitled is a matter for the jury to determine in connection with all the facts called out in the case." 64 And the following instruction has also been approved: That "the flight of a person immediately after the commis- sion of a crime, or after a crime has been committed with 59 — Green v. State, 165 Ala. 79; 62— People v. Cismadija, 167 Mich. Anderson v. State, 104 Ind. 467.; 210. State v. Thomas, 58 Kan. 805, 51 *63 — State v. Thomas, 58 Kan. 805, Pac. 228. 51 Pac. 228. See also, Green' v. 60— People v. Giancoli, 74 Cal. 642, State, 165 Ala. 79. 16 Pac. 510. 64— People v. Forsythe, 65 Cal. 61 — State v. Harrison, — Iowa — , 101, 3 Pae. 402. 149 N. W. 452. § 278] Presumptions, Btjbden and Degeee or Proof. 611 which he is charged, is a circumstance to be weighed by the jury as tending in some degree to prove a consciousness of guilt, * * * and if you [the jury] find, from the evi- dence in this case, that the deceased was killed as charged in the indictment, and that, immediately after such killing, the defendant left and escaped, * * * it is a circum- stance to be weighed by you. * * * It is not sufficient, of itself, to establish the guilt of the defendant. ' ' 65 An instruction: "That it is allowed to be proved, when a party attempts to escape or get out of the way of the arresting officer; that is only a circumstance which is allowed to be considered by the jury, like other circumstances, look- ing to all the surroundings * * * at the time," is proper, 66 and the court may instruct that: "flight raises the presumption of guilt; and if you believe, from the evi- dence, that the defendant, after having shot and killed M., as charged in the indictment, fled the country, and tried to avoid arrest and trial, you may take that fact into consider- ation in determining his guilt or innocence ; " 67 that if the defendant, shortly after the homicide, "concealed himself, or fled from the neighborhood where deceased was slain, then that circumstance might be considered by you with the other testimony in the case, as bearing upon the question of defendant's guilt;" 68 or that: "If you find from the evi- dence that defendant did thus attempt to escape from custody, this 'is a circumstance to be considered by you, in connection with all the other evidence, to aid you in deter- mining the question of his guilt or innocence." 69 The similarity of these instructions to the one set forth at the beginning of the section will be noted. A charge that "though evidence tending to show flight is a matter to be 65— People v. Bush ton, 80 Cal. 160, 66— Smith v. State, 63 Ga. 170. 22 Pae. 127, 549. In this case it was 67 — State v. Gee, 85 Mo. 647. held that the instruction was not 68 — People v. Ramirez, 56 Cal. 533, vicious as assuming that the crime 38 Am. Rep. 73. charged against the defendant was 69 — Anderson v. State, 104 Ind. admitted. 467. 612 Instructions to Juries. • [§ 278 considered by the jury, yet it is of weak and inconclusive .character,?' is erroneous, in assuming that the flight was caused by fear of violence of the person named. 70 An"" instruction is not erroneous that "when a crime has been committed, and the person accused thereof knows he is accused, and then flees or conceals himself, such conduct is evidence of consciousness of guilt, and, in connection with other proof, may be the basis from which guilt may be inferred. " 71 It is proper to refuse an instruction that flight "is by no means an inference of guilt. Many men are naturally of weak nerve and timid, and under certain circumstances the most innocent person might seek safety in flight. ' ' These were considerations which it was the province of counsel, and not the court, to present to the jury. 72 Where the court did not instruct that any presumption of guilt arose from the defendant having left the state, a fail- ure to instruct as to the presumptions from flight was not § 279. Same — Invasion of province of jury. Some courts discountenance the giving of instructions as to evidence of flight, and have refused to reverse cases where they have been given only when it could be seen that the instruction as given was not prejudicial. This is on the ground that the tendency is to invade the jury's province in weighing the evidence, and may work much injury to the defendant. 74 An instruction that "the law recognizes another proposi- tion as true, and it is that ~' the wicked flee when no man pursueth, but the innocent are as bold as a lion. ' That is a self-evident proposition, that has been recognized so often 70— Bodine v. State, 129 Ala. 106. 73— State v. Thompson, 155 Mo. 71 — Com. v. Boschino, 176 Pa. St. 300. 103. 74— People v. Jones, 160 Cal. 358, 72 — People v. Gianooli, 74 Cal. 117 Pae. 176. 642, 16 Pac. 510. § 280] Presumptions, Bueden and Degbee of Pboof. 613 by mankind that we can take it as an axiom, and apply it in this case," — is erroneous, as being equivalent to a direc- tion to the jury that the presumption of guilt arising from flight was so conclusive that it was the jury's duty to act on it as axiomatic proof. 75 A requested instruction in defendant 's behalf, in a prose- cution for murder, that, if his flight was caused by fear of violence at the hands of the deceased's friends, this would not be a circumstance to be considered against him, is prop- erly refused, as being an invasion of the province of the jury. 76 And for the same reason the .following instructions have been held properly refused : ' ' Flight is not evidence of guilt unless the defendant fled from a sense of guilt; and, if de- fendant voluntarily surrendered herself for trial, this -ex- plained away her flight, and it will not be weighed against her;" 77 "flight is very slight evidence of guilt in any case, and ought not to weigh anything when satisfactorily ex- plained. ' ' 78 § 280. Same — Explanation of flight. An instruction upon the question of flight should appro- priately include as an issue to be determined by the jury, the explanation which the defendant may make, 79 and an instruction which omits the essential qualification that flight can be indicative of a guilty consciousness only when the defendant knows he is charged with crime, is erroneous. 80 Where the defendant has given a full explanation of his flight, it is for the jury to say whether that explanation is true or not, untrammeled by any instructions from the court 75 — Hickory v. United States, 160 "Whether a given fact is evidence U. S. 408, 40 L. Ed. 474. or not is for the court, but whether 76 — Miller v. State, 107 Ala. 40. it is slight, or what weight it should This instruction was also deemed ab- have, is for the .jury. ' ' stract. 79 — State v. Miller, 255 Mo. 223. 77 — Thomas v. State, 107 Ala. 13'. 80— People v. Jones, 160 Cal. 358, 78— Smith v. State, 63 Ga. 170. 117 Pac. 176. 614 Instructions to Juries. [§ 280 to the effect that the evidence is to be weighed by them as indicative of guilt. 81 § 281. Burden of proof — Necessity and propriety of giv- ing instructions. It is not always necessary to give an instruction as to the burden of proof, as the propriety of so doing depends on the state of the evidence. 82 But the mere fact ' ' that the evidence upon an issue which is submitted to the jury is conflicting does not make it im- proper for the court to give a charge informing the jury as to which party has the burden of proving the issue sub- mitted to them. ' ' 83 As a general rule, it is error to neglect or refuse to give an instruction on the burden of proof, when a proper charge on the subject has been requested, 84 although it is usually held that the court is not bound to instruct on this subject unless a proper instruction is requested. 85 In criminal cases, it is error to refuse an instruction that , ' ' the burden of proof to show the truth of the charge is at all times on the state," 86 or to refuse an instruction that 81 — People v. Jones, 160 Cal. 358, Michigan. In re Bromley's Es- 117 Pae. 176. tate, 113 Mich. 53. 82 — Frost v. Grimmer, — Tex. Civ. ' Missouri. Hunter v. McElhaney, App. — , 142 S. W. 615. 48 Mo. App. 234; McKinney v. Guh- 83 — Chittim v. Martinez, 94 Tex. man, 38 Mo. App. 344'. 141.' But see, Macon v. Paducah St. ' New Hampshire. Conway v. Jef- Ry. Co. (Ky.), 62 8. W. 496. ferson, 46 N. H. 521; Maynard v. 84-^-Stevens v. Pendleton, 94 Mich. Fellows, 43 N. H. 255. 405; Black v. State, 1 Tex. App. Pennsylvania. Mitchell v. Mitch - 369. ell, 18 Wkly. Notes Cas. 439. 85 — Connecticut. Miles v. Strong, South Dakota. Frye v. Ferguson, 68 Conn. 273. , 6 S. D. 392. Georgia. Small v. Williams, 87 Texas. Gulf, C. & S. F. Ry. Co. Ga. 681. v. McCarty, 82 Tex. 608; Cooper v. Iowa. Martin v. Davis, 76 Iowa Lee, 1 Tex. Civ. App. 9. 762; Duncombe v. Powers, 75 Iowa 86 — Phillips v. State, 26 Tex. App. 185; Smith v. Chicago, M. & St. P. 228, 8 Am. St. Rep. 471; Black v. Ry. Co., 60 Iowa 512. State, 1 Tex. App. 369. It will also Kentucky. Anderson v. Baird, 19 be error to give an instruction calcu- Ky. L. Rep. 444. lated to leave the impression on the § 282] Presumptions, Burden and Degree op Proof, 615 the burden of proof is on the state to prove beyond a reason- able doubt every element of the crime of which the defend- ant may be convicted. 87 In civil cases, where the burden of proof shifts to the de- fendant, a request that the jury may be instructed accord- ingly should be granted, as the jurors generally understand that the burden of proof is always on the plaintiff. 88 It has been held, however, that if the evidence conclus- ively proves a fact, it is not error for the court to refuse to charge the jury upon which party the burden of proof originally rested. 89 § 282. Repetition of instructions as to burden of proof. The court need not repeat instructions already given as to the burden of proof, 90 and a requested instruction, which adds nothing to the force of a charge already given, may rightfully be refused. 91 In criminal cases, the usual charge on reasonable doubt makes unnecessary a charge that the burden is upon the state throughout to establish every constituent element of the offense. 92 Where the court in its main charge instructs that "the defendant in a criminal case is presumed to be innocent until his guilt is established by legal evidence beyond a reason- able doubt; and in case you have a reasonable doubt as to the defendant's guilt, you will acquit him," it is not error to refuse a request to charge "that the burden of proof never shifts from the state to the defendant, but is upon the state minds of the jury that the state had 89 — In re Yetter 's Estate v. Zo- made out its case, and that, unless rick, 55 Minn. 452. evidence of defendant raised in their 90 — Houston & T. C. R. Go. v. Dot- minds a reasonable doubt, they son, 15 Tex. Civ. App. 73; Garst v. should convict. Snyder v. State, 59 United States, 103 C. C. A. 469, d80 Ind. 105. Fed. 339. 87— People v. Oohn, 76 Cal. 386, 18 91— State v. McDonald, 65 Me. Pac. 410. 465. 88 — Stevens v. Pendleton, 94 Mich. 92 — Huggins v. State, 42 Tex. Cr. 405. App. 364. 616 Instructions to Juries. [§ 282 throughout to establish every constituent element of the offense," — at least, it is not such error as is calculated to injure the rights of defendant. 93 Where the court instructed that the jury must believe the defendant guilty beyond a reasonable doubt, or acquit, an instruction as to the burden of proof is unnecessary, and should not be given. 94 § 283. Sufficiency of instructions as to burden of proof. A charge, in effect, requiring a defendant to establish his defense beyond a reasonable, doubt is erroneous as imposing a greater burden than the law authorizes, 95 but the jury may properly be instructed, on this subject, that the party hold- ing the affirmative of the issue must prove it by a preponder- ance of the testimony, and that if their minds are in equi- poise upon the evidence, they should find against such party. 90 A requested instruction that the burden of proof is on the plaintiff to establish the allegations of his declaration is properly modified by adding that such allegations may be established by testimony presented on behalf of the defend- ant, or by the defendant 's admissions, if the jury find such testimony or admissions. 97 An instruction that "while, as a matter of law, the bur- den of proof is upon the plaintiff, and it is for him to prove his case by a preponderance of the evidence, still, if the jury find that the evidence bearing upon the plaintiff's case preponderates in his favor, although slightly, it would be sufficient for the jury to find the issues in his favor," is 93 — Lewis v. State (Tex. Or. 95 — Nixon v. State, 14 Ga. App. App.), 59 S. W. 886. The contro- 261. versy was apparently held in 30 96 — Meyer v. Blakemore, 54 Miss. Tex. App. 541, but it did not appear 570; Loekhart v. Camfield, 48 Miss, that the court charged upon reason- 491. See also, Buckingham v. Har- able doubt. ris, 10 Colo. 455, 15 Pac. 817. 94 — State v. Hollingsworth, 156 97 — Hartman v. Ruby, 16 App. Mo. 178. See also, Beeson v. State, Cas. (D. C.) 45. 60 Tex. Cr. App. 39. § 283] Presumptions, Burden and Degree oe Proof. 617 not erroneous as excluding from consideration the evidence introduced by defendant. 98 It is .proper to refuse to charge, in an action for personal injuries, that the burden is "on the plaintiff to establish the material allegations in his petition by the preponder- ance of the evidence; and unless you believe from the evi- dence that, by a preponderance of the evidence, plaintiff has established the facts which the court has charged you are material to his recovery, you will return your verdict for the defendant, ' ' as such charge requires the plaintiff to prove all the grounds of negligence relied upon." The jury may be instructed that the burden is on defend- ant to prove his answer by a preponderance of the evidence, 1 and this will be a sufficient instruction on the subject when no further instruction is requested. 2- In a prosecution for murder, it was proper to refuse charges asked by the defendant to the effect "that, the greater the crime, the stronger is the proof required for conviction. ' ' 3 The giving of an instruction which, in effect, places the burden of proof on the wrong party is reversible error, as the tendency is to mislead the jury. 4 But instructions to the effect that the plaintiff must make out his case as pleaded, and that in the absence of such proof the jury must find for the defendant, does not change the burden of proof from the defendant to the plaintiff. 5 In a case of criminal libel, it has been held error to charge 98 — West Chicago St. R. Co. v. 4 — Pennington v. Woodall, 17 Ala. O'Connor, 85 111. App. 278. 685; State v. Crossley, 69 Ind. 203; 99 — Houston & T. C. R. Co. v. Pat- State v. Grinstead, 62 Kan. 593, 64 terson (Tex. Civ. App.), 57 S. W. Pae. 49; Woodson Mach. Co. v. 675. Morse, 47 Kan. 429, 28 Pac. 152; 1 — Kepler v. Jessup, 11 Ind. App. Wildey v. Crane, 69 Mich. 17. 241. 5— Clifton v. Sparks, 25 Mo. App. 2 — Nichol v. Laumeister, 102 Cal. 383. See also, demons v. State, 167 658, 36 Pac. 925. Ala. 20, where an instruction was 3 — State v. Johnson, 104 La. 417, held erroneous as changing the bur- 81 Am. St. Rep. 139. den of proof. 618 Instructions to Jubies. [§283 that it was incumbent on defendant to satisfy the jury that the libel was not published with his knowledge 1 or author- ity, and unless he had so satisfied them they should find him guilty, since this puts the burden of proof upon the defend- ant to show his innocence, contrary to the rule of reasonable doubt and the presumption of innocence. 6 § 284. Degree of proof necessary in civil cases. Except in one jurisdiction, 7 it is a well-settled rule that the jury in a civil case are to decide facts upon the prepon- 6— State V. Grinstead, 62 Kan. 593, 64 Pac. 49. 7 — Rule in Alabama: In Ala- bama the rule seems to be well set- tled, against the weight of author- ity, that the jury are not compelled to find aeeording to the mere prepon- derance of the evidence, unless it produces a reasonable conviction or satisfaction of the mind. Street v. Sinclair, 71 Ala. 110; Wilcox, Gibbs & Co. v. Henderson, 64 Ala. 535. A mere preponderance of evidence is not sufficient to authorize a verdict for plaintiff, unless it is sufficient to "satisfy" the minds of the jury. Acklen's Ex'r v. Hickman, 60 Ala. 568. "No matter what might be * * * if it [the evidence] failed to produce a rational belief in the minds of the jury as to the existence of the fact, it could not in any sense be said to be proved. * * * In the absence of legal presumption, it is for the jury alone to determine upon the amount of evidence re- quired." Mays v. Williams, 27 Ala. 267. In accordance with these views, it has been held that it is error to instruct the jury, as matter of law, either that they must find according to the preponderance of the evidence, or that they cannot so find. Vande- venter v. Ford, 60 Ala. 610. Or that "in civil cases all that is required is that the proof shall preponderate in favor of one party or the other, and the jury must find according to the preponderance of the proof. ' ' Mays v. Williams, 27 Ala. 267. Or that "a preponderance of evidence, merely, inclining the minds of the jury to sustain the plaintiff's claim, cannot be regarded as sufficient. ' ' Aeklen 's Ex'r v. Hickman, 60 Ala. 568. So it has been held improper to charge that conviction should be produced in the minds of the jury after weigh- ing all the evidence, and not by de- ciding on the preponderance. The process of weighing is the finding of an equilibrium or preponderance. Vandeventer v. Ford, 60 Ala. 610. The measure of proof in all civil ac- tions is to reasonably satisfy the jury. Charges which require satis- faction beyond reasonable doubt ex- act too high a degree of proof, and should never be given. Decatur Car Wheel & Mfg. Co. v. Mehaffey, 128 Ala. 242. An instruction that "the 'pre- ponderance of evidence' does not mean that the plaintiff must produce a greater number of witnesses than the defendant. It is sufficient to en- title her to a verdict that you are reasonably satisfied, from all the evi- § 285] Presumptions, Bubden and Degree op Peoop. 619 derance of the evidence, even though the evidence does not show such facts to their satisfaction; 8 that the jury should be left free to consider all the evidence and circumstances ; 9 and that their verdict should be for the party in whose favor the evidence preponderates. 10 There is no rule of law which adopts any sliding scale of belief in civil controversies, and the judge should not require a greater weight of proof than the ordinary preponderance of evidence. 11 § 285. Necessity of instructions as to preponderance of evi- dence. It is error to relieve a plaintiff of the duty to prove his case by a preponderance of the evidence, 12 and the refusal of an instruction as to the burden of proof and preponder- ance of evidence is error where the subject is not covered by other instructions. 13 deuce, that the allegations of the complaint are true," — is not open to the objection that it does not as- sert that if the jury are reasonably satisfied, from a fair preponderance of the evidence, the verdict shall be for plaintiff. Louisville & N. E. Co. v.. White, 40 C. C. A. 352, 100 Fed. 239. 8 — Stratton v. Central City Horse Ry. Co., 95 111. 25. The determination of the prepon- derance of evidence rests with the jury. Chicago Union Traction Co. v. Wirkua, 131 111. App. 485. 9 — Chicago Union Traction Co. v. Hampe, 228 111. 346, rev'g 130 HI. App. 596; Miller v. John, 208 111. 173, aff'g 111 111. App. 56. 10 — Arkansas. Shinn v. Tucker, 37 Ark. 580. Connecticut. Mead v. Husted, 52 Conn. 53, 52 Am. Rep. 554. Georgia. Clark v. Cassidy, 62 Ga. 407. Illinois. Johnson v. People, 140 111. 350; American Cent. Ins. Co. v. Rothchild, 82 111. 166; Ottawa, O. & F. River Val. R. Co. v! McMath, 4 111. App. 356. Kansas. Callison v. Smith, 20 Kan. 28. Texas. Southwestern Telegraph & Telephone Co. v. Newman (Tex. Civ. App.), 34 S. W. 661; Dockery v. Tyler Car & Lumber Co. (Tex. Civ. App.), 34 S. W. 660. West Virginia. Simmons v. Insur- ance Co., 8 W. Va. 474. Wisconsin. Telford v. Frost, 76 Wis. 172. 11— Van Slyke v. Rooks, 181 Mich. 88. 12— Thomas v. Burks, 120 111. App. 222. 13 — Johnson v. Chicago City Ey. Co., 166 111. App. 79. 620 Insteuctions to Jubies. ['§ 285 But a defendant's instruction as to the effect on the bur- den of proof of a sworn plea denying partnership may be refused where the purported plea is not a plea in fact. 14 § 286. Sufficiency of instructions as to preponderance of evidence. The jury may properly be instructed that a party must make out his case by a preponderance of the evidence, 13 or that all disputed facts are to be determined by the prepon- derance of evidence. 16 It is proper to instruct that the jury should find for plain- tiff if there is a preponderance of evidence in his favor; 17 or that ' ' if the testimony of the plaintiff outweighs that of the defendant, if only enough to turn the scales, your ver- dict must be for the plaintiff;" 18 or that they should find for defendant, where the burden of proof is on plaintiff, unless the evidence preponderates in plaintiff's favor; 19 or that the defendant is entitled to a verdict if his plea ap- pears to be sustained by the preponderance of the evidence. 20 If the answer admits the allegations of the petition, and sets up a recoupment and counterclaim, it is not improper to instruct the jury that unless the defendant does prove such defense by a preponderance of the evidence to the " 14— Christo v. Nicola, 183 111. v. White, 138 111. App. 107; Spring- App. 487. field Consol. R. Co. v. Farrant, 121 15 — Cunningham v. Stein, 109 111. 111. App. 416; Chicago Virden Coal, 375; De Hart v. Board Com'rs John- Co. v. Rucker, 116 111. App. 425. son Co., 143 Ind. 363; Altschuler v. To allow recovery if the plaintiff Coburn, 38 Neb. 881; Chapman v. has proved his case is proper. Chi- McAdams, 1 Lea (Tenn.) 500. cago & A. R. Co. v. Hatfield, 109 16— Roe v. Bacheldor, 41 Wis. 360. 111. App. 556. 17— Green v. Southern States Lum- 18 — Telford v. Frost, 76 Wis. 172. ber Co., 163 Ala. 511; Mead v. Hus- This instruction simply requires the ted, 52 Conn. 53, 52 Am. Rep. 554. jury to weigh the evidence, and An instruction requiring the jury leaves them free to do so. to find for the plaintiff if his ease is 19 — Southwestern Telegraph & Tel- established by a preponderance of ephone Co. v. Newman (Tex. Civ. the evidence is proper. Ford v. Coal App.), 34 S. W. 661. Belt R. Co., 143 111. App. 431; Kidd 20— Shinn v. Tucker, 37 Ark. 580. § 286] Presumptions, Burden and Degree of Proof. 621 satisfaction of the jury, the jury will find for the plaintiff. 21 It has also been held improper to refuse an instruction that if the evidence preponderates against the plaintiff, the jury should find for the defendant. 22 It is error to require a defendant to show the prepon- derance of evidence where the burden of proof is on the plaintiff, 23 and it has been held improper to instruct that the jury may find for the defendant if in doubt as to the preponderance of evidence. 24 An instruction which determines upon which side the evidence preponderates is erroneous. 25 It is likewise improper to instruct "the jury that, to justify a verdict in favor of the plaintiff, the preponderance of testimony in his favor must be such 'as clearly outweighs the evidence on the other side. ' " ' This instruction might ' mislead the jury to believe that plaintiff's case must b£ fully and abundantly established, and so as to be easily apparent to any and every one, and in a doubtful case is ground for reversal. 26 An instruction requiring the plaintiff to prove every material allegation of the case has been held improper. 27 An instruction that circumstantial evidence is proof of circumstances which, with other evidence, constitute a pre- ponderance of the evidence, is awkward but not mis- leading. 28 An instruction that: "You must find that the plaintiff 21 — Procter v. Loomis, 35 Mo. 26 — Callison v. Smith, 20 Kan. 28. App. 482. Se« also, § 292, post. 22 — Simmons v. Insurance Co., 8 27 — Kidd v. White, 138 111. App. W. Va.. 474. 107; MeMahon v. Scott, 132 111. App. 23 — Eggmann v. Nutter, 155 111. 582. App. 390. Requiring proof of all the allega- 24 — Illinois Steel v. Koshinski, 135 tions of every count is error. Har- 111. App. 587, aff ' d 231 111. 198. vey v. Chicago & A. R. Co., 116 111. 25 — Chicago Union Traction Co. v. App. 507. Wirkus, 131 111. App. 485; W. H. 28— Chicago City Ry. Co. v. Nel- Stubbings Co. v. World's Columbian son, 215 111. 436, aff'g 116 111. App. Expos. Co., 110 111. App. 210. 609. 622 Instructions to Juries. [§ 286 has maintained the burden of proving every essential fact by the greater weight of evidence; that is, that the theory submitted to you for your adoption upon the part of the plaintiff is more probable than the theory advanced upon the part of the defendants. So, if you reach that conclu- sion, — that the plaintiff has maintained the burden of proof placed upon her by law, — she has established her case by a greater weight of evidence. All that means is that the theory presented to you by the plaintiff must be more accept- able, more probable, and more consistent with your experi- ence than the theory advanced by the defendants. If it is not, she fails,"— is erroneous. A theory may be more ac- ceptable, probable and consistent than another, and yet; be unsupported by a preponderance of the evidence. The burden of proof is not sustained by proving such a theory. 20 § 287. Same— Definitions. The term "preponderance of the evidence" is well under- stood, and it is not reversible error to refuse an instruction defining such term. 30 But in explaining what is meant by "preponderance of evidence," there is no error in telling the jury that when a party introduces evidence that satisfies the jury that "more likely than not" a certain state of facts exists, he has established his case by a preponderance of the evi- dence. 31 An instruction that the term preponderance of evidence means "best evidence" is not misleading; 32 nor can error be predicated of the following definition: "Preponderance, of course, means the most weight ; but it is an abstract idea to talk about weighing the testimony between two such men as these parties. I can tell you a sure test as to where the 29 — Kommeney v. City of New 31 — Groesbeck v. Marshall, 44 S. York, 49 App. Div. (N. T.) 64. C. 538. 30 — Roloff v. Luer Bros. Packing 32 — Johnstone v. Seattle, R. & S. & Ice Co., 263 111. 152. E. Co., 45 Wash. 154, 87 Pac. 1125. § 289] Presumptions, Burden and Degree of Proof. 623 weight of testimony is in this case: It is just what you believe to be the truth. If you believe that defendant prom- ised to repay this money, then the weight of the testimony is. on the side of the plaintiff. ' ' 33 §288. Same — Use of word "preponderance." In giving instructions of this character, it will not be proper to substitute the word "weight" for the word "pre- ponderance." "Preponderance" is something more than "weight." It is superiority of weight, — outweighing. 34 The omission of the word ' ' preponderance " in an instruc- tion does not render it erroneous where other instructions require the plaintiff to prove his case by a preponderance of the evidence. 35 § 289. Same — Elements to be considered. The jury should be restricted to the essential issues, 36 and an instruction as to the determination of the preponder- ance of the evidence which does not contain all the elements the jury may consider, and which informs them that they are to consider only the element specified, is erroneous, 37 but an instruction enumerating the facts the jury may con- sider is not erroneous when it requires other facts to be considered. An instruction requiring the jury to consider certain elements has been held not to exclude other ele- ments. 38 33— Thomas v. Paul, 87 Wis. 607. Chicago City Ry. Co., 163 111. App. 34— Shinn /v. Tucker, 37 Ark. 580. 98. 35 — Coulter v. Illinois Cent. R. Co., 37 — Brisch v. Chicago City Ry. Co., 264 111. 414. 176 111. App. 341; Miers v. Charles The omission of " preponderance " H. Fuller Co., 167 111. App. 49; Smith before the word "evidence" is not v. James, 163 111. App. 501. error. Donk Bros. Coal & Coke Co. The omission of important ele- v. Thil, 228 111. 233, aff'g 128 111. ments in determining the preponder- App. 249. ance of evidence is error. Sullivan 36 — Instruction on preponderance v„ Sullivan, 139 111. App. 378. held erroneous in not restricting ref- 38 — Chicago Union Traction Co. v. erence to essential issues. Nelson v. Tarus, 221 111. 641. 624 Instructions to Jueies. [§ 290 § 290. Same— Evidence. In giving instructions on this subject, it is proper to use the words "if you believe from the evidence," 39 or "if you find from the evidence, ' ' 40 but the use of the words "as shown by the evidence" has been held erroneous. 41 An objection to the use of the word "direct" instead of "positive" has been held too refined. 42 An instruction telling the jury that' they are to determine on which side the preponderance of the evidence lies from the "facts shown by the evidence and from all other facts and circumstances" is erroneous, 43 and it is also error to give an instruction telling the jury the meaning of prepon- derance of the evidence, which leaves it to the jury to de- termine where the preponderance of the evidence is "in accordance with the way in which it appears to their minds." 44 The use of the word "testimony" instead of "evidence" will not be a ground of reversal ; 43 nor will the use of the word "proof" instead of "evidence," as they are often used indifferently, as synonymous with each other. 46 A sentence in an instruction stating that "the burden of proof is on the defendant, to show by a preponderance of the evidence that he was not liable," does not use the words "burden of proof" in an improper sense. 47 39 — Grese v. Donk Bros. Coal & ' 42— Dowie v. Sutton, 227 111. 183, Coke Co., 147 111. App. 284; Chicago 118 Am. St. 266, aff'g 126 111. App. & E. I. B. Co. v. Pittman, 135 111. 47. App. 481, aff'd 231 111. 581; Bast 43— Balenovic v. Ansick, 181 111. St. Louis & S. B. Co. v. Zink, 133 111. App. 660. App. 127, aff'd 229 111. 180; Hall v. 44— Meunier v. Chicago & C. Coal Ditto, 128 111. App. 187; Hueni v. Co., 180 111. App. 114. Freehill, 125 111. App. 345. 45— Mann v. Higgins, 83 Cal. 66, 40 — Chicago & E. I. B. Co. v. Pitt- 23 Pac. 206; Jones v. Gregory, 48 man, 135 111. App. 481, aff'd 231 111. 111. App. 228. 581; Illinois Cent. E. Co. v. Warriner, 46 — Flores v. Maverick (Tex. Civ. 132 111. App. 301, aff'd 229 111. 91. App.), 26 S. W. 316. 41 — Chicago, B. & Q. E. Co. v. 47— Harmon v. Callahan, 187 111. Sack, 129 111. App. 58. App. 312. § 291] Pkesumptions, Bubden and Degbee of Peoof. 625 § 291. Determination of preponderance of evidence from credibility and intelligence of witnesses. In determining the preponderance of evidence, it is proper to consider the opportunity of witnesses for seeing or know- ing the things about which they testify, 48 as well as their veracity, 49 their appearance and demeanor on the stand, their interest, prejudice or bias, and whether their state- ments were positive or equivocating, 50 and the probability or improbability of the truth of their several statements, in view of all the other evidence, facts and circumstances proved on the trial. 51 The court may properly instruct that the jury in deter- mining the preponderance of the evidence are to ' ' take into consideration the opportunities of the several witnesses for seeing or knowing the things about which they testify, their conduct and demeanor while testifying, their interest or lack of interest, if any, in the result of the suit, and the probability or improbability of the truth of their several statements." 52 But it has been held that a judgment should not be re- versed merely because of a refusal to give such an instruc- tion. 53 An instruction that the preponderance of evidence is not established by the contradictory evidence of two equally credible witnesses has been held erroneous, 54 and it has also been held error to give an instruction basing the determina- tion of the preponderance of evidence upon the intelligence of witnesses. 55 48 — Pittsburg, C, C. & St. L. E. Buries v. Oregon Short Line E. Co., Co. v. Gates, 137 111. App. 309; Bob- 49 Mont. 129, 140 Pac. 513. Com- ertson v. Monroe, 7 Ind. App. 470; pare Chicago City By. Co. v. Keenan, Bierbach v. Goodyear Eubber Co., 54 85 111. App. 367. Wis. 208, 41 Am. Eep. 19. 53— Greeley, S. L. & P. Ry. Co. 49— Pittsburg, C, C. & St. L. E. Co. v. Yount, 7 Colo. App. 189, 42 Pac. v. Gates, 137 111. App. 309. 1023. 50 — State v. Bohan, 19 Kan. 35. 54 — Holmes v. Horn, 120 111. App. 51 — Eobertson v. Monroe, 7 Ind. 359. App. 470. 55 — Barnes v. Chicago City Ey. 52— Meyer v. Mead, 83 111. 19; Co., 147 111. App. 601. Blashfield Vol. 1—40 §26 Instructions to Juries. [§291 An instruction that the jury are at liberty to decide that the preponderance of evidence is on the side which, in their judgment, is sustained by the more intelligent, the better in- formed, the more credible, and the more disinterested wit- nesses, whether these are the greater or the smaller number, has been held erroneous as amounting to a direction that the preponderance of evidence is with the side upon which the more intelligent and better informed witnesses testified. 56 § 292. Comparison of number of witnesses. The court may ignore the fact that more witnesses testify for one side than for the other, 57 but it is proper to instruct that the preponderance of the evidence is not determined solely by the number of witnesses, 58 or is not "necessarily" determined by such number alone. 59 In cases where the number of witnesses is an important factor, it may be reversible error to omit a consideration of such element, 60 and instructions omitting a consideration 56 — Chicago City By. Co. v. Kee- App. 280, aff'd 229 III. 621. Contra, nan, 85 111. App. 367. Eidem v. Chicago, R. I. & P. R. Co., 57— Mcintosh v. Mcintosh, 79 144 111. App. 320. Mich. 198. 60— Pennington v. Gillaspie, 66 58— Chenoweth v. Burr, 242 HI. W. Va. 643. The giving of instruc- 312, aff'g 146 HI. App. 443; Pitts- tions on the preponderance of the burg, C, C. & St. L. R. Co. v. Gates, evidence, stating that by a prepon- 137 111. App. 309; Chicago City Ry. ' derance of the evidence is not neces- Co. v. Enroth, 113 111. App. 285. sarily meant the greater number of An instruction that the number of witnesses, and telling the jury what witnesses alone does not determine they may consider in determining the preponderance of evidence, is such preponderance, but omitting proper. Gough v. Illinois Cent. Trac- the number of witnesses as an ele- tion Co., 180 111. App. 708; Hopkins ment to be considered, is reversible v. Chicago City Ry. Co., 178 111. App. error in a case where the number of 656; Kravitz v. Chicago City Ry. Co., witnesses is an important factor. 174 111. App. 182; Hackett v. Chi- Yanloniz v. Spring Valley Coal Co., cago, I. & L. Ry. Co., 170 HI. App. 185 111. App. 563. 140. ■ An instruction 1 given for the plain- 59 — An instruction that the pre- tiff, advising the jury that the pre- ponderance of evidence is not "nee- ponderance of the evidence does not essarily" determined by the number consist alone in the greater number of witnesses alone, is proper. El- of witnesses testifying, and then gin, J. & E. R. Co. v. Lawldr, 132 111. enumerating certain matters to be § 292] Presumptions, Bueden and Degkee of Peoof. 627 of the number of witnesses are properly refused; 61 but an instruction that the number of witnesses is a controlling element in determining the preponderance of evidence may, under some circumstances, be misleading. 62 To omit the word "necessarily" before "mean" in the phrase, "the court does not mean a larger number of wit- nesses," has been held not misleading. 63 An instruction which is not directed to the question of the preponderance of the evidence, but which refers to the number of witnesses, is not erroneous in omitting other elements which might be considered in determining the pre- ponderance. 64 , considered by the jury, but omitting the number of witnesses testifying for and against, held reversible er- ror. De Joannis v. Domestic Engi- neering Co., 185 HI. App. 272. An instruction on the preponder- ance of the evidence, which omits the element of the number of wit- nesses, is erroneous. Devine v. City of Chicago, 178 111. App. 39; O'Dono- ghue v. City of Chicago, 167 111. App. 349; Cummins v. Cleveland, C, C. & St. L. By. Co., 147 111. App. 291; Langan v. Chicago City Ey. Co., 145 111. App. 249; Tripoli Sav. Bank v. Sehnadt, 135 111. App. 373. . An instruction which tells the jury that the preponderance of evidence does not consist merely in the num- ,ber of witnesses testifying, and enumerates the circumstances which may be considered in determining where the preponderance lies, is er- roneous and misleading, where it wholly omits from the enumeration the question of the relative number of witnesses. Hays v. Johnson, 92 111. App. 80. 61 — Lyons v. Joseph T. Eyerson & Son, 242 111. 409, rev'g 148 111. App. 284; Thompson v. Dering Coal Co., 158 HI. App. 289; Fisher v. City of Geneseo, 154 111. App. 288; Andre- iczk v. Chicago & E. I. E. Co., 150 111. App. 539; Cummins v. Cleveland, C, C. & St. L. Ey. Co., 147 111. App. 291; Illinois Commercial Men's Ass'n v. Perrin, 139 111. App. 543; Sullivan v. Sullivan, 139 111. App. 378. It is error to refuse instructions that the number of witnesses is to be considered in determining the pre- ponderance of evidence. Meunier v. Chicago & C. Coal Co., 180 III. App. 114; Van Vlissingen v. Pabst Brew- ing Co., 178 111. App. 569; Johnson v. Chicago City Ey. Co., 166 111. App. 79. 62 — Cunningham v. Illinois Cent. E. Co., 179 111. App. 505; Skuli- mowski v. Deahl, 169 111. App. 355. 63 — Gallagher v. Singer Sew. Mach. Co., 177 111. App. 198. An instruction erroneous in omit- ting the element of the number of witnesses, held not reversible error. Wesolowsky v. Twarog, 169 111. App. 650. 64— Nau v. Standard Oil Co., 154 111. App. 421. 628 Instructions to Juries. [§ 292 A charge that the jury may give credit to the fewer num- ber of witnesses if they believe them to be more credible may be properly given, 65 and an instruction "that the jury' are not to be swayed by the number of witnesses, but by the quality of the testimony," has been approved. 66 It is proper to instruct that "in summing up the testi- mony upon any given question, you should not alone count witnesses. It is not always the most satisfactory; neither is it the most certain of the truth. The questions are: What did the witness swear to? How much did he know? Was he positive, or uncertain and equivocating? What were his means of knowledge of the transactions or matters he testified about? What is the character of the witness for truthfulness ? Is he credible ? " 67 So, also, it has been held that the court may tell the jury that, ' ' other things being equal, the greater number of wit- nesses would carry the greater weight, " 6S or that ' ' a case might arise wherein a jury would be justified in finding a verdict for the defendant upon the testimony of one wit- ness, against the testimony of any greater number of wit- nesses." 69 An instruction that the testimony of one witness is suffi- cient if uncontradicted, is not misleading as commenting on the weight of the evidence. 70 An instruction that ' ' the weight of evidence does not de- pend upon the number of witnesses to a given fact, but it depends upon the amount of credit that you will give to the testimony of one or all of the witnesses in the case, ' ' is not 65— Perkins v. Wabash R. Co., 233 66— Divver v. Hall, 20 Misc. Rep. 111. 458, aff'g 137 111. App. 514. (N. Y.) 677. An instruction that the evidence 67 — State v. Bohan, 19 Kan. 35. preponderates on the side whose wit- 68 — Spensley v. Lancashire Ins. nesses are more credible, though the Co., 62 Wis. 453. number be smaller, is improperly re- 69 — People v. Chun Heong, 86 Cal. fused. St. Louis & 0. R. Co. v. 329, 24 Pac. 1021. Union Trust & Savings Bank, 209 70— Lipsey v. People, 227 111. 364. 111. 457; Harvey v. McQuirk, 158 111. App. 50. § 293] Presumptions^ Burden and Degree op Proop. 629 error, in that it tells the jury that the number of witnesses cuts no figure on the question of preponderance of evidence ; where the court has also charged in this connection that the manner of the witnesses on the stand, their apparent interest in the case, their means and opportunities of observing the facts to which they testified, and the probability of their statements, are all to be considered in determining whether they testified correctly or not ; and that ' ' in considering the question of the alleged negligence of the defendant, you are to take into consideration all of the evidence, the number, character, and appearance of the witnesses, the interest, if any, which any of them may have in the event of the suit, the manner of their giving their testimony, their apparent fairness and candor, and the probability, in connection with all of the evidence and the circumstances surrounding the matters testified to, of the truth of the matters testified to by the several witnesses." 71 §293. Same — What instructions are improper. The court should not instruct that a witness on one side will offset the testimony of a witness on the other, if of equal credibility. The question of credibility is one of fact for the jury, and the court should not in any way intimate an opinion as to the effect of the testimony of competent witnesses. 72 An instruction which gives the jury to understand, or 71 — Hardy v. Milwaukee St. Ry. Co., 89 Wis. 183. 72 — Alabama. Armstrong v. State, 83 Ala. 49; Alabama Fertilizer Co. v. Reynolds, 79 Ala. 497; Childs v. State, 76 Ala. 93; Dorgan v. State, 72 Ala. 173. Georgia. Amis v. Cameron, 55 Ga. 449; Salter v. Glenn, 42 Ga. 64. Illinois. Johnson v. People, 140 111. 350, criticising dictum in McFar- land v. People, 72 111. 368; Kelley v. Louisville & N. R. Co., 49 111. App. 304; Christman v. Ray, 42 111. App 111. Montana. Wastl v. Montana Un ion R. Co., 17 Mont. 213, 42 Pac 772. Wisconsin. Sickle v. Wolf, 91 Wis 396; Thomas v. Paul, 87 Wis. 607 Bierbach v. Goodyear Rubber Co. 54 Wis. 208, 41 Am. Rep. 19; Ely v Tesch, 17 Wis. 209; Mariner v. Pet tibpne, 14 Wis. 195; Kuehn v. Wil son, 13 Wis. 117. 630 Instructions to Jtjkies. [§ 293 which is liable to give the jury to understand, that the pre- ponderance of the evidence is to be determined by the num- ber of witnesses testifying on each side, is erroneous. 73 An instruction that the jury are to determine the prepon- derance of the evidence by counting the witnesses for and against a proposition of fact invades the province of the jury. 74 The jury are to determine, not only the credibility of the witnesses, but the weight which should be given to the testimony of each witness, for there are other considera- tions than that of credibility which affect the question of weight, and the jury may well understand the word ' ' cred- ible" to refer merely to the integrity of the witness. 75 If the preponderance of evidence were to be determined solely by the number of credible witnesses, a litigant could hardly fail in any case if he should be fortunate enough to have the greater number of credible witnesses. 76 It is therefore erroneous to instruct the jury that the pre- ponderance of evidence is to be determined by the number of witnesses on each side, if all are equally credible; 77 or that if the jury consider the witnesses equally credible, ' ' the greater number of witnesses on one side or the other would be entitled to the greater weight;" 78 or that in case of con- flict in the testimony of two witnesses ' ' of equal credibility, the one offsets the other, and unless further evidence is given by other witnesses for the People, or circumstances proved, give the preponderance for the plaintiff," the ver- 73 — Hewlett v. Dilts, 4 Ind. App. 74 — Bierbach v. Goodyear Rubber 23. Co., 54 Wis. 208, 41 Am. Rep. 19. The court should not tell the jury 75 — Wastl v. Montana Union R. that a preponderance of the evidence Co., 17 Mont. 213, 42 Pac. 772; Bier- is to be determined by a count of the bach v. Goodyear Rubber Co., 54 witnesses on each side, though the Wis. 208, 41 Am. Rep. 19. jury may be told that the fact of 76 — Wastl v. Montana Union R. numbers is not to be ignored in de- Co., 17 Mont. 213, 42 Pac. 772. termining the preponderance of the 77 — Wastl v. Montana Union R. evidence. Christman v. Ray, 42 111. Co., 17 Mont. 213, 42 Pac. 772. App. Ill; State v. Bohan, 19 Kan. 78 — Bierbach v. Goodyear Rubber 35. ' Co., 54 Wis. 208, 41 Am. Rep. 19. § 293] Pkestjmptions, Bubdef and Degeee of Pbooe. 631 diet should be for the plaintiff; 79 or that when the two parties "directly contradict each other in regard to the main facts in the case the evidence is balanced unless there is some other witness or some other circumstances ' ' in evi- dence corroborating one side or the other; 80 or that if two witnesses, whose statements conflict, are of equal credit, the statement of a third witness corroborating plaintiff's wit- ness creates a preponderance of testimony for plaintiff, "un- less there is some fact or evidence tending to corroborate the defendant ; " 81 or that ' ' if you should find that three wit- nesses are of equal credibility and weight, and the two latter conflict with the former on the facts of the case, you may disregard the evidence of the former;" 82 or "that, if the testimony of the two parties conflicts in regard to the war- ranty, and neither is corroborated by other testimony, so far as that testimony so conflicts, the plaintiff must fail ; " 83 or that the jury should acquit where there are two witnesses on each side, in case they are of equal credibility; 84 or that "if one witness swears to the existence of a fact, and an- other witness, of equal credibility, swears that the fact is not true, then the fact is. not proved, unless there is other satisfactory proof of the fact;" 85 or that the testimony of one credible witness is entitled to more weight than many false witnesses; 86 or "that one credible witness is worth more than many witnesses who, the jury may and do believe, have knowingly testified untruthfully upon any material point in issue, and are not corroborated by other credible witnesses;" 8T or to instruct in a case where plaintiff alone testified in his own behalf, and two witnesses testified for defendant, that the jury should find for defendant if de- 79 — Johnson v. People, 140 111. 350, 84 — Armstrong v. State, 83 Ala. disapproving dictum in McFarland 49. v. People, 72 111. 368; Thomas v. 85— Dorgan v. State, 72 Ala. 174. Paul, 87 Wis. 607. 86— Ford v. Coal Belt R. Co., 143 80— Sickle v. Wolf, 91 Wis. 396. 111. App. 431. 81— Ely v. Tesch, 17 Wis. 209. 87— Henderson v. Miller, 36 111. 82— Childs v. State, 76 Ala. 93. App. 232. 83 — Kuehn v. Wilson, 13 Wis. 117. 632 Instkuctions to Jukies. [§ 293 fendant's two witnesses were credible, and their testimony was not successfully impeached. 88 So it is error to charge that "in the absence of any cor- roborating circumstance, if all the witnesses were sur- rounded by the same circumstances, and were alike in every- thing but numbers, the evidence of two would overcome the evidence of one, and the jury were bound to believe the two in preference to the one ; " 89 or that ' ' the jpreponder- ance of the evidence is determined by the number of wit- nesses on each side, where the opposing witnesses are equally credible, and equally well corroborated, and have no greater interest in the result of the suit. ' ' 90 And it has been held proper to refuse a charge "that a preponderance of the evidence does not necessarily mean a majority of witnesses, and that the evidence of one credible witness may be taken and given credence by the jury in preference to the evidence of a number of witnesses that the jury believe are swearing to falsehoods. ' ' 91 An instruction that the preponderance of testimony ' ' does necessarily consist in the number of witnesses, ' ' etc., instead of ""does not necessarily consist, " etc., must be condemned; for although the omission of the word "not" might have been accidental, yet it cannot be said that the jury did not understand the instruction just as it reads, and resolve the conflict of evidence upon that basis. 92 A charge that the jury should take into consideration the number of witnesses testifying on any particular point and if they found that a greater number had testified to a certain state of facts on behalf of one party than had testi- fied to the contrary on behalf of the other party, and they believed that the credibility of the greater number of wit- 88— Kelley v. Louisville & N. E. 91— Trott v. Wolfe, 35 111. App. Co., 49 111. App. 304. 163. 89 — Amis v. Cameron, 55 Ga. 449. 92 — Illinois Cent. E. Co. v. Zang, 90— Christman v. Bay, 42 111. App. 10 111. App. 594. 111.. § 294] Presumptions, Burden and Degree of Proof. 633 nesses was equal to the credibility of the lesser number, they should find the preponderance of the evidence on the side of the greater number, is properly refused as ignoring the probative force of circumstances appearing in evidence apart from the testimony of witnesses. 93 § 294. Instructions as to preponderance of evidence where evidence is equally balanced. It is proper to give an instruction in civil cases, that where the evidence is equally balanced, the verdict of the jury must be against the party on whom rests the burden of proof, 94 but an instruction that if the evidence is evenly balanced, the jury should answer the question against the party having the burden of proof, is misleading where there are several issues. 95 Where the case as submitted to the jury does not consist solely of issues upon the declaration, but also includes affirmative issues raised by the defendant, it is error to in- struct that plaintiff is bound to make "out its case by a preponderance of the evidence upon every material point ; ' ' and that "if, in weighing the evidence, the jury think that the evidence upon any point necessary to a recovery by the plaintiff is evenly balanced, or preponderates ever so slightly in favor of the defendant, they [the jury] should find for the defendant." Under such instruction, plaintiff can recover only by having every point or issue found in its favor, and that, of course, includes those as to which the burden of proof is on the defendant ; and so the instruc- tion seems to throw the burden of proof even as to them on the plaintiff. 96 93 — Cunningham v. Illinois Cent. v. Ford, 60 Ala. 610; Jarrell v. Lillie, E. Co., 179 111. App. 505. - 40 Ala. 271; Lindsey v. Perry, 1 Ala. 94 — City Bank's Appeal from 203. Com'rs, 54 Conn. 273; Jones v. 95— Wright v. Sipple, 179 111. App. Angell, 95 Ind. 376. 386. Where the evidence is equally bal- 96 — Richelieu Hotel Co. v. Inter- anced, the verdict of the jury must national Military Encampment Co., be against the party on whom rests 14"0 111. 248, 33 Am. St. Eep. 234. the burden of proof. Vandeventer 634 Instructions to Jtjkies. [§ 294 Since it is unjust to charge a defendant with liability when the preponderance of the evidence merely inclines the minds of the jury to the side of plaintiff, it is error to charge that if the evidence is equally balanced, the jury must find for the plaintiff. 97 In replevin by the mortgagee of personalty against the mortgagor, an. instruction that if the jury have a doubt as to the preponderance of the evidence, they should give the plaintiff the benefit of the doubt, is erroneous, since it au- thorizes the jury to find for plaintiff if a single doubt as to the greater weight of the testimony for defendant had arisen during the progress of the trial, although stronger doubt as to the opposite view might have necessarily been engendered in their minds from a consideration of the whole testimony. 98 An instruction telling the jury to decide according to what they find the preponderance of the evidence to be, has been held erroneous on the ground that it furnishes the jury no rule in the event that they find the evidence equally balanced. 99 But a judgment for plaintiff will not, for that reason, be reversed, because such instruction does not authorize a ver- dict for the plaintiff unless there is a preponderance of evi- dence in his favor, and because the fact of their finding for him raises the presumption that they regarded the evidence as preponderating in his favor. 1 97 — Jarrell v. Lillie, 40 Ala. 271. other way, their verdict should be 98 — Grant v. Eowe, 83 Mo. App. for the defendant, was held errone-" 560. ous for not instructing the jury how 99 — Southwestern Telegraph & to find if the evidence was equally Telephone Co. v. Newman (Tex. Civ. balanced. The view taken was that App.), 34 S. W. 661; Dockery v. if the jury considered the evidence Tyler Car & Lumber Co. (Tex. Civ. equally balanced, they could have App.), 34 S. W. 660. found no verdict at all; but the See City Bank's Appeal from court considered that the error was Com'rs, 54 Conn. 273, where an in- not prejudicial and refused to re- struction that if the proof prepon- verse the case. derated in favor of the plaintiff, the 1 — Dockery v. Tyler Car & Lumber verdict should be in his favor, but if Co. (Tex. Civ. App.), 34 S. W. 660. the jury found a preponderance the § 295] Presumptions, Burden and Degree of Proof. 635 In some cases it has been held that when the jury are instructed that a preponderance of the evidence is necessary to entitle the plaintiff to recover, the inference is that if the evidence is equally balanced, the verdict should be for the other side, and such instruction is not erroneous because it does not expressly state such proposition. 2 § 295. Instructions as to preponderance of evidence requir- ing too high a degree of proof. In civil cases it is error for a court to charge a jury so as to mislead them into the belief that more stringent proof is necessary than the law requires. 3 To require the establishment of a case with the certainty required in criminal cases is error. 4 Accordingly, an instruction requiring proof beyond a rea- sonable doubt is improper, 5 but an instruction requiring proof by the preponderance of the evidence and not beyond a reasonable doubt is proper. 6 An instruction permitting recovery though the prepon- derance of evidence is "slight" is proper. 7 It is error to instruct, and proper to refuse to instruct, that the plaintiff must make out his case by a "clear pre- 2 — Harper v. State, 101 Ind. 109; 6 — Pierson v. Lyon & Healy, 243 Blitt v. Heinrich, 33 Mo. App. 243. 111. 370, aff'g 150 111. App. 116; Bior- 3 — Watkins v. Wallace, 19 Mich. dan v. Chicago City Ry. Co., 178 111. 57. App. 323; Peterson v. Chicago & O. 4— Reynolds v. Wray, 135 111. App. P. El. R. Co., 176 111. App. 218; Lyons 527. v. Chicago City Ry. Co., 171 111. App. 5 — Pley v. Lavette, 167 111. App. 374; Hammond v. Woodruff & Ed- 494. wards Co., 168 111. App. 368; Crouse Charges requiring satisfaction be- v. Barber Asphalt Paving Co., 162 yond a reasonable doubt exact too 111. App. 271; Gurnea v. Baltimore high a degree of proof, and should & O. R. Co., 157 HI. App. 331; Chi- never be given in civil actions. cago City Ry. Co. v. Kastrzewa, 141 Proof which reasonably satisfies the 111. App. 10. jury is all that is required. Decatur 7 — Norton v. Clark, 253 111. 557; Car Wheel & Manufacturing Co. v. Hanchett v. Haas, 219 HI. 546, aff'g Mehaffey, 128 Ala. 242. As to the 125 111. App. Ill; Young v. City of exceptional rule prevailing in Ala- Fairfield, 173 111. App. 311; Hamilton bama, see § 284, ante. v. Kankakee Elec. Ry. Co., 158 111. 636 ■Instructions to Jueies. [§295 ponderance ' ' of the evidence. A ' ' mere preponderance ' ' is enough, 8 and the use of the word "clearly" is misleading, 9 although it has been held that % such an instruction is not ■ ground for reversal when other instructions state the rule correctly and no prejudice results. 10 It is error to require the jury to be "convinced," 11 or that the jury must be ' ' conclusively convinced, " 12 or that the jury must have "an abiding conviction;" 13 and " 'clearly convinced,' as applied to the measure of proof required, lays down too exacting a rule." 14 So it is erroneous to instruct that a fact must be "clearly and fairly proved ; " 15 or proved ' ' clearly and with cer- App. 422; Dowd v. Chicago City Ey. Co., 153 111. App. 85; City of Chicago v. Sullivan, 139 111. App. 675; Chi- cago & E. I. E. Co. v. Fowler, 138 111. App. 352, rev'd 234 111. 619; Chi- cago & G. T. E. Co. v. Smith, 124 111. App. 627, aff'd 226 111. 178; Devine v. Eyan, 115 111. App. 498. The use of the phrase "although but slightly ' ' is not misleading. La- Belle v. Grand Cent. Market Co., 172 111. App. 582. Striking out of the words "al- though but slightly " held not er- ror. Perkins v. Sanitary Dist. of Chicago, 171 111. App. 582. 8— Nelson v. Fehd, 203 111. 120, aff'g 104 111. App. 114; Bitter v. Saathoff, 98 111. 266; McDeed v. Mc- Deed, 67 111. 545; Eich v. Lence, 147 111. App. 110; Illinois Collieries Co. v. Davis, 137 111. App. 15, aff'd 232 111. 284; Schofield v. Baldwin, 102 III. App. 560; Chicago & E. I. E. Co. v. Stormenf, 90 111. App. 505; Prath- er v. Wilkens, 68 Tex. 187. 9 — Prather v. Wilkens,. 68 Tex. 187. An instruction requiring "clear" proof of fraud is not misleading where the court, in other instruc- tions, plainly charged that only a preponderance of evidence was nec- essary to establish fraud. Stocks v. Scott, 188 111. 266, aff'g 89 111. App. 615. 10 — Draper v. Petrea, 147 111. App. 164. 11 — Brady v. Mangle, 109 111. App. 172; Merchants' Loan & Trust Co. v. Lamson, 90 111. App. 18. A requested charge requiring the jury to be "convinced" in place of being ' ' reasonably satisfied "is properly refused as exacting too high a degree of proof. . Southern E. Co. v. Hobbs, 151 Ala. 335. 12 — Hiester v. Laird, 1 Watts & S. (Pa.) 245; Greathouse v. Moore (Tex. Civ. App.), 23 S. W. 226. 13— Battles v. Tallman, 96 Ala. 403. 14 — Wilcox v. Henderson, 64 Ala. 535. • An instruction that fraud must be proved by "clear and convincing evidence" is incorrect. A prepon- derance of the evidence is sufficient. Smith v. Edelstein, 92 111. App. 38. 15— Hall v. Wolff, 61 Iowa 559. § 295] Presumptions, Burden and Degree of Proof. 637 tainty," 16 or "with certainty," 17 or "clearly proved;" 18 or that the case must be free from doubt; 19 or that the plaintiff must prove his case by a "fair preponderance" of the evidence. 20 It is also error to give an instruction requiring "more and better" evidence; 21 or that the plaintiff must prove his case by ' ' downright evidence ; " 22 that if the evidence leaves a fact " in a state of doubt and uncertainty, " it " can- not be regarded as established by the testimony, ' ' 23 and, an instruction requiring a party to "establish" his case is erroneous. 24 16 — Howand v. Zimpelman (Tex.), 14 S. W. 59. In this case, the court said that the word "certainty" meant beyond a reasonable doubt. 17 — First Nat. Bank of Marshall v. Myer, 23 Tex. Civ. App. 302. 18— Lehman v. Kelly, 66 Ala. 192; McLeod v. Sharp, 53 111. App. 406. Compare Edwards v. Whyte, 70 Ala. 365, where in a suit for breach of contract, to which the defense was a rescission, it was held that instruc- tions that defendant must prove the rescission, "to the satisfaction of the jury, by clear and satisfactory testimony," were not erroneous; that when fairly construed, they did not, call for a higher degree of proof than to the satisfaction of the jury. 19 — Whitney v. Clifford, 57 Wis. 156. To the same effect is Harris v.' Russell, 93 Ala. 59, where an instruction that the burden being on plaintiffs to make out their case to the satisfaction of the jury, they must find for defendants, if they are left in v doubt as to any of the facts, was held erroneous, as exact- ing too high a measure of proof, and as calculated to make the jury under- stand that the evidence must be certain beyond doubt. See also, Spencer v. Daggett, 2 Vt. 92, where it was held proper to refuse an in- struction that if the jury doubted about the fact of defendant's lia- bility, they must find for him. 20 — B. Lantry Sons v. Lowrie (Tex. Civ. App.), 58 S. W. 837; Cabell v. Menezer (Tex. Civ. App.), 35 S. W. 206. But see, Bryan v. Chicago, R. I. & P. Ry. Co., 63 Iowa 464, where it was held that in charg- ing a jury that they are to decide on the fair preponderance of the evidence, no error is committed by the use of the word "fair;" that it means no more than the charge would have meant without it. To the same effect is Jamison v. Jami- son, 113 Iowa 720. 21— Chicago, B. & Q. R. Co. v. Pol- lock, 195 111. 156, aff'g 93 111. App. 483; Boyer v. Broffey, 109 111. App. 94. 22 — Roe v. Bacheldor, 41 Wis. 360. 23— Rowe v. Baber, 93 Ala. 422. 24 — McMasters v. Grand Trunk Ry. Co., 155 111. App. 648. An instruction that the burden of proof is on the defendant to ' ' estab- lish" his plea of contributory negli- gence is not erroneous as imposing a 638 Instructions to Juries. [§ 295 An instruction that the plaintiff's proof must "excel" that of the defendant is misleading, 23 and it has been held error to instruct that in order "to establish a charge of fraud, the facts must'be such that they are not explicable on any other reasonable hypothesis;" 26 or in an action for wrongful attachment, that "the burden of proof is on the plaintiff to show that the attachment was sued out by the defendant wrongfully, maliciously, and without probable cause, and of the existence of these elements she must rea- sonably satisfy the minds of the jury; and if the evidence leaves them confused or uncertain as to the existence of such elements, then the . plaintiff is not entitled to re- cover. ' ' 27 , An instruction requiring defendants to prove "by a pre- ponderance of all the evidence in the cause" the averments. of their counterclaim, has been held subject to criticism, but in view of other instructions the error was harmless. 28 § 296. Same — Instructions requiring that evidence must "satisfy" jury. Instructions that the plaintiff is bound to prove his case to the "satisfaction" of the jury by a clear preponderance of the evidence are erroneous, and may, of course, be prop- erly refused as requiring too high a degree of proof for the maintenance of an issue in a civil cause. 29 greater burden than is authorized. Mitchell v. Hindman, 150 111. 538; Houston & T. C. B. Co. v. Swaneey, Stratton v. Central City Horse By. — Tex. Civ. App. — , 128 S. W. 677. Co., 95 111. 25; Buff v. Jarrett, 25— Sager v. St. John, 109 111. 94 111. 475; Protection Life Ins. Co. App. 358. v. Dill, 91 111. 174; Wright v. Sipple, 26 — Phoenix Ins. Co. v. Moog, 87 179 111. App. 386; Leslie v. Joliet Ala. 334, 4 L. B. A. 680, 13 Am. St. Bridge & Iron Co., 149 111. App. 210; Eep. 46. Briggs v. Kohl, 132 111. App. 484; 27 — Brown v. Master, 104 Ala. 451. Kelley v. Malhoit, 115 111. App. 23; 28 — Cohen v. Eeichman, 55 Ind. Gooch v. Tobias, 29 111. App. 268; App. 164. Fernandes v. McGinnis, 25 111. App. 29 — Alabama Great Southern B. 165; Balohradsky v. Carlisle, 14 111. Co. v. Bobinson, 183 Ala. 265; Low- App. 289; Ottawa, O, & F. River ery v. Rowland, 104 Ala. 420; Val. R. Co. v. McMath, 4 111. App. § 296] Presumptions, Burden and Degree of Proof. 639 Such an instruction might be understood to mean a higher degree of proof than is furnished by a preponderance of the evidence. This is especially so when the language is often repeated. 30 Accordingly, it is error to give instructions requiring the jury to be "satisfied," 31 or stating that one upon whom is the burden of proof "must satisfactorily prove by a preponderance of evidence" all the necessary facts; 32 that plaintiff must .satisfy the jury throughout the entire case of the correctness of his story; 33 that a party must estab- lish the material allegations of his pleading "to the satis- faction of the, jury;" 34 that the plaintiff must establish his case ' ' to the full satisfaction of the jury, by clear and con- vincing proof;" 35 that the jury must be "well satisfied," etc; 38 that the jury must be "thoroughly satisfied" of a fact in dispute ; 37 that a fact must be proved ' ' to your en- tire satisfaction, * * * by testimony in which you have 356; Miller v. Barber, 66 N. Y. 558; Pierpont Mfg. Co. v. Goodman Pro- duce Co. (Tex. Civ. App.), 60 S. W. 347; Finks v. Cox (Tex. Civ. App.), 30 S. W. 512; Feist v. Boothe (Tex. Civ. App.), 27 S. W. 33; Grigg v. Jones (Tex. Civ. App.), 26 S. W. 885; McGill v. Hall (Tex. Civ. App.), 26 ' S. W. 132; Oury v. Saunders, 5 Tex. Civ. App. 310; Fordyce v. Beecher, 2 Tex. Civ. App. 29. 30 — McBride v. Banguss, 65 Tex. 174. 31 — Swigart v. Savely, 176 111. App. 369; Brunk v. Huthmaeher, 165 111. App. 295. ' 32— Wollf v. Van Housen, 55 111. App. 295; Bauchwitz v. Tyman, 11 111. App. 186. Requested charges requiring the jury to be satisfied by a preponder- ance of the evidence impose too high a duty. SoutheA B. Co. v. Hobbs, 151 Ala. 335. An instruction requiring the de- fendant to "satisfy" the jury by a fair preponderance of the evidence as to a certain payment requires an improper degree of proof. Howell v. Empire State Surety Co., 183 111. App. 221. 33— Wright v. Sipple, 179 111. App. 386. A charge that the plaintiff has to satisfy the jury throughout the en- tire case of the correctness of his story is properly refused, since there may have been matters in his story that were immaterial to the issues. Wright v. Sipple, 179 111. App. 386. 34— McGill v. Hall (Tex. Civ. App.), 26 S. W. 1^2. 35 — Gage v. Louisville, N. O. & T. Ey. Co., 88 Tenn. 724. 36 — Monaghan v. Agricultural Fire Ins. Co. of Watertown, 53 Mich. 238. 37 — O'Donohue v. Simmons, 58 Hun (N. Y.) 467. 640 Instructions to Juries. [§ 296 implicit confidence ; " 3S that ' ' the law requires the plaintiff to make clear and satisfactory proof of the contract, as claimed by him; therefore, if yon believe the evidence in this case is such as to leave the real terms of the contract between the parties in doubt, the plaintiff cannot re- cover;" 39 that a party alleging a fact "must prove it by a preponderance of the evidence, so clear and cogent that it leaves the mind well satisfied that the charge is true ; " 40 "that the jury must be satisfied by the preponderance of the evidence, to a reasonable certainty, that a fact exists, before they can find such fact." 41 It has been held, though, that an instruction that the jury "should be satisfied by a clear preponderance of proof" is not misleading when given with one that "this is a civil action, and it is not required in a civil action to establish the facts beyond a reasonable doubt, * * * but a fair preponderance of proof is all that is required. ' ' 42 And where a charge that before plaintiffs could recover, the jury must be satisfied from the evidence that defend- ant's negligence ' caused the fire, and that plaintiffs were not guilty of contributory negligence, was qualified as fol- lows : ' ' And the destruction of the cotton by fire under this clause may be shown by circumstantial evidence sufficient in your opinion to justify the belief that the fire was caused by a spark or cinders coming from defendant's engine," — it was held that this latter clause sufficiently indicated to the jury that by the word "satisfied" nothing more was meant than opinion or belief; and the charge as an entirety did not present reversible error. 43 On an issue as to undue influence, an instruction that 38— Ott v. Oyer's Ex'x, 106 Pa. 41— Pelitier v. Chicago, St. P., M. St. 7, in which it was said that this & O. Ry.Co., 88 Wis. 521. was equivalent to directing the jury 42 — Hart v. Niagara Fire Ins. Co., that there must be no doubt in their 9 Wash. 620, 27 L. E. A. 86, 38 Pac. minds. 213. 39— White v. Gale, 14 111. App. 274. 43— Martin v. Missouri Pac. By. 40 — Hutchinson Nat. Bank v. Co., 3 Tex. Civ. App. 133. Crow, 56 111. App. 558. § 296] PRESUMPTIONS, BuKDEN AND DEGREE OP PbOOE. 641 "the law presumes in favor of honesty and fair dealing, and whoever asserts the contrary must prove it to your sat- isfaction, by a preponderance of the evidence, ' ' does not impose the burden of proving undue influence beyond a rea- sonable doubt. The instruction requires of contestants ' ' only ' a preponderance of the evidence. ' The phrase ' to your satisfaction' informed the jurors that they were the judges as to where the preponderance lay. ' ' 44 An instruction requiring the jury to find for a defendant if the state of mind of the jury "be in a state of doubt or confusion as to whether or not the plaintiff is entitled to a verdict, ' ' in effect requires the proof to satisfy the jury beyond doubt, and that they must be absolutely positive of the plaintiff's right to recover before they can find a ver- dict for him, and should be refused as misleading and con- fusing. 45 44 — Surber v. Mayfield, 156 Ind. 45— Alabama Great Southern K. 375. Co. v. Robinson, 183 Ala. 265.' Blashfield Vol. 1—41 CHAPTEE XXVII. Instructions on Reasonable Doubt. § 297. Necessity of instructions as to reasonable doubt. § 298. Necessity of denning reasonable doubt. § 299. Sufficiency of instructions. § 300. Eepetition of instructions. § 301. Statutory definitions. § 302. Defining as doubt founded on reason. § 303. Defining as a doubt which would cause a reasonable man to pause and hesitate in the graver transactions of life. § 304. Defining as a doubt one the absence of which would cause a rea- sonably prudent man to act in his own most important affairs. § 305. Absence of reasonable doubt as equivalent to ' ' moral certainty, ' ' or "reasonable and moral certainty." §306. Absence of reasonable dpubt as equivalent to an "abiding convic- tion to a moral certainty. ' ' § 307. Defining as ' ' satisfaction ' ' of guilt. § 308. Probability of innocence may create reasonable doubt. § 309. Negative definitions of reasonable doubt. § 310. Reasonable doubt not raised by argument of counsel — Not a doubt as to law. § 311. Reasonable doubt as doubt arising from the evidence or want of evidence. § 312. Doctrine applicable only to evidence considered as a whole. § 313. Same — Contrary view. § 314. Instructions as to number of jurors who must entertain a reasonable doubt in order to acquit. § 315. Statements that jurors must not disbelieve as jurors what they would believe as men. § 316. Statements that it is better that guilty escape than that innocent be punished. . § 317. Applying doctrine to degrees of crime. § 318. Instructions held bad as requiring too high a degree of proof to over- come a reasonable doubt. § 319. Instructions held bad as requiring too high a degree of proof of innocence. § 320. Sufficiency of instructions taken as a whole. § 321. Seasonable doubt in civil cases. (642) § 297] Instructions on Seasonable Doubt. 643 § 297. Necessity of instructions as to reasonable doubt. The necessity of an instruction on the subject of reason- able doubt, in the absence of a request, depends both on statutory provisions and the facts of the case. If the evi- dence suggests no doubt, it is, of course, not ground for reversal that an instruction on the subject was not given. But if there is any doubt of a defendant's guilt arising from the evidence, the jury should be fully instructed as to its duty; * and in general it may be said that it is the better practice to give an instruction on this subject, even though not requested, and though there is no statutory provision requiring such. an instruction. 2 In some jurisdictions, the court is, in criminal cases, required by statute to instruct the jury fully on all the law- pertinent to the case, and under a statute of this nature it is apprehended the court should instruct on reasonable doubt, though no special request is made therefor, if the evidence is such that a reasonable doubt may arise from it. 3 Where a statute provides that the court shall instruct the jury, in felony cases, to acquit if they have a reasonable doubt of defendant's guilt, a failure to so instruct will work a reversal in any case in which there is a conflict of evi- dence, or in which the evidence does not clearly establish the guilt of the defendant. 4 This statute, however, does not require an instruction on reasonable doubt in misdemeanor cases, unless requested, but it is error not to give such an instruction when asked. 5 In another jurisdiction, where a 1 — A defendant is entitled to an sides Georgia have statutes like the acquittal if the jury is not eon- one mentioned in the text, vinced of his guilt beyond a rea- 4 — Hutto v. State, 7 Tex. App. sonable doubt, and the instructions 44; Kobinson v. State, 5 Tex. App. of the court should leave the jury 519 ; Goode v. State, 2 Tex. App. 520 ; in no doubt as to its duty when such Spears v. State, 2 Tex. App. 244j a doubt is entertained. Woodland Priesmuth v. State, 1 Tex. App. v. State, 110 Ark. 15. 481; Lindsay v. State, 1 Tex. App. 2 — Lawless v. State, 4 Lea (Tenn.) 327. 173. 5— May v. State, 6 Tex. App. 191; 3 — Richardson v. State, 70 Ga. Goode v. State, 2 Tex. App. 520; 825. A number of other states be- Treadway v. State, 1 Tex. App. 669. 644 Instbuctions to Jtjkies. [§ 297 statute provides that, if there is a reasonable doubt of the degree of the crime of which the defendant is guilty, he must be convicted of the lower offense, the jury must be instructed that, if they have a reasonable doubt as to the degree of the offense, they should only convict of the lower degree. 6 The refusal of a requested instruction as to reasonable doubt is harmless error where the evidence does not sug- gest a doubt. 7 But if such issue is raised by the evidence, it is error to refuse a request to charge that the burden is upon the state to show every element of the crime alleged against the defendant beyond a reasonable doubt. 8 Though requests are not in all respects such as the trial judge should give, yet, if they call his attention to the fact that the accused rests his defense largely on the theory of rea- sonable doubt, he should state the principle of reasonable doubt to the jury substantially and clearly. 9 A mere defini- tion of reasonable doubt is insufficient. 10 § 298. Necessity of defining reasonable doubt. It is doubtful if any better definition of the term "reason- able doubt" can be given than the words themselves, 11 and 6— State v. McCarty, 73 Iowa 51; Cal. 386, 18 Pao. 410; People v. State v. Wood, 46 Iowa 116. Cheong Poon Ark, 61 Gal. 527. 7 — If the evidence is such as does Florida. Reeves v. State, 29 Pla. not suggest a doubt, and guilt is 527. clearly proved, a failure of the court Georgia. Suiter v. State, 76 Ga. to instruct on reasonable doubt on 105; Seiler v. State, 76 Ga. 103; Mad- request will be harmless error, and den v. State, 67 Ga. 151. not ground for reversal. Suiter v. Missouri. State v Pannon, 158 State, 76 Ga. 105; Seiler v. State, Mo. 149. 76 Ga. 103; Van Brown v. State, 34 Texas. Van Brown v. State, 34 Tex. 186; Pilkinton v. State, 19 Tex. Tex. 186; Pilkinton v. State, 19 Tex. 214. See also, Reg. v. Riendeau, 9 214; May v. State, 6 Tex. App. Rap. Jud. Que. B. R. 147. 191 J Treadway v. State, 1 Tex. App. 8 — Alabama. Crane v. State, 111 669; Black v. State, 1 Tex. App. Ala. 45; Compton v. State, 110 Ala. 369. 24; Elmore v. State, 92 Ala. 51; 9— Madden v. State, 67 Ga. 151. Lane v. State, 85 Ala. 11. 10— State v. Pannon, 158 Mo. 149. California. People v. Cohn, 76 11— People v. Hotz, 261 111. 239. § 298] Instructions on Reasonable Doubt. 645 an attempt to define the term may be characterized as an attempt "to paint the lily." 12 The term is so commonly known and understood that it requires no definition, 13 and in a number of decisions it has been said that it would be better practice not to attempt any definition of the term. 14 The term "reasonable doubt" is so clear and exact that it may well be doubted whether an instruction has ever been formulated that served either to simplify or eluci- date it. 15 ' ' The term ' reasonable doubt ' is almost incapable of any definition which will add much to what the words them- selves imply. In fact, it is easier to state what it is not, than what it is ; and it may be doubted whether any attempt to define it will not be more likely to confuse than to en- lighten a jury. A man is the best judge of his own feelings, and he knows for .himself whether he doubts, better than any one else can tell him. ' ' lfi "If a jury cannot understand their duty when told they 12 — Vasquez v. State, 54 Ma. 127, Oklahoma. Douglas v. Territory, 127 Am. St. Eep. 129. 1 Okla. Gr. 583, 98 Pae. 1023. 13 — People v. Hansen, 263 111. 44. United States. Miles v. United 14— Alabama. McKleroy v. State, States, 103 U. S. 304 (13 Otto), 26 77 Ala. 95. L. Ed. 481. Georgia. Middleton! v. State, 7 15— State v. Harsted, 66 Wash. Ga. App. 1. 158 > 119 Pac. 24. * Kansas. State v. Mosley, 31 Kan. 16— State v. Sauer, 38 Minn. 439. 355, 2 Pae. 782; State v. Kearley, In People v. Stubenvoll, 62 Mieh. 26 Kan. 87. ^ 2 ®> ** * s sa icl: "Language within Kentucky. Mickey v. Com. 9 the _ comprehension of persons of Bush 593. ordinary intelligence can seldom be Maine. ' State v. Bounds, 76' Me. mad igg > lid. 677. 76— Harris v. State, 10 Okla. Cr. Iowa. State v. Lee, 113 Iowa 348. 417, 137 Pae. 365. 656 Instructions to Juries. [§ 302 Instructions to the jury ' ' that if, after considering all of the evidence, they could give a reason, arising out of any reasonable aspect of the facts proven, for acquitting the de- fendant, then they should acquit him, ' ' and ' ' that if, after considering all the evidence in the case, the mind of the jury is left in a state of confusion as to any fact necessary to con- stitute the defendant's guilt, then they must find him not guilty," are properly refused. 77 Definitions of reasonable doubt should not be risked on criminal trials, and the juror should be allowed to have his own conception of what a reasonable doubt is to him, — not the prosecutor or the court ; and he should not be under any legal compulsion to have to give, or be able to formulate and state, the reason which may raise a reasonable doubt in his mind and conscience; but an instruction to the jury ' ' that, while it is true that the state must make out its case beyond a reasonable doubt, yet it is also true that the doubt which should induce a jury to withhold a verdict of guilty must be a reasonable one, — must be a doubt for which a reason can be given, — which reasonable doubt arises out of all the evidence in the case or the want of evidence,''' will not work a reversal. 78 § 303. Defining as a doubt which would cause a reasonable man to pause and hesitate in the graver transac- tions of life. In a number of cases, reasonable doubt has been defined as ' ' one arising from a candid and impartial investigation of all the evidence, and ,such as, in the graver transactions of life, would cause a reasonable and prudent man to hesi- tate and pause;" 79 thus, an instruction that a reasonable 77— Bodine v. State, 129 Ala. 106. pie, 88 111. 460; May v. People, 60 78— Klyce v. State, 78 Miss. 450. 111. 119; Miller v. People, 39 111. 457. 79 — Colorado. Minich v. People, Iowa. State v. Pierce, 65 Iowa 89. 8 Colo. 440, 9 Pae. 4. Nebraska. Willis v. State, 43 Illinois. Spies v. People, 122 111. Neb. 102; Carr v. State, 23 Neb. 749. 1, 3 Am. St. Rep. 320; Dunn v. Peo- Pennsylvania. Com. v. Miller, 139 pie, 109 111. 635; Connaghan v. Peo- Pa. St. 77, 23 Am. St. Rep. 170. § 3031 Instructions on Eeasonable Doubt. 657 doubt is such a doubt as would cause a juror to hesitate and to refrain from acting if a grave business matter was in- volved, has been held proper. 80 And an instruction that "a reasonable doubt is such a doubt as would cause a reasonable and prudent man to pause and hesitate to act in the graver and more important affairs of life, but a reasonable doubt is not merely a possi- bility of innocence, nor a speculation as to the innocence of the defendant not arising out of the evidence in the case or the want of it," is not objectionable. 81 In approving an instruction in this language, it was said by one court : ' ' The language under consideration does not declare that the doubt, being defined, is one upon which a reasonable man would act. The jury are thereby informed that it is such a doubt as would cause a reasonable and pru- dent man to hesitate and pause. There is a vast difference between hesitating or pausing and acting. The doubt which leads a man to hesitate or pause may be very far from being such a doubt as would control his action ; and we think that if, in the important transactions of life, a doubt arises in the mind of a reasonable and prudent man which would not lead him to hesitate, or to pause and consider of his future action, that doubt is not such a reasonable doubt as would justify the jury, in a criminal case, in returning a verdict of acquittal. ' ' 82 An instruction : "A reasonable doubt is such a doubt as exists in the mind of a reasonable man after a full, free, and careful examination and comparison of all the evidence. It must be such a doubt as would cause a careful, considerate, and prudent man to pause and consider before acting in the grave and most important affairs of life," — is not objec- tionable as making the verdict of the jury depend upon a South Dakota. State v. Baice, 24 81 — State v. Ellison, — N. M. — , S. D. 111. !44 Pae. 10. 80 — State v. Dickey, 48 W. Va. 82 — Minich v. People, 8 Colo. 440, 325. 9 Pac. 4. Blashfield-Vol. I— 42 658 Instructions to Juries. [§ 303 mere preponderance of the evidence, and any attempt to define reasonable doubt will not escape criticism. 83 § 304. Defining a doubt as one the absence of which would cause a reasonably prudent man to act in his own most important affairs. It is a rule of evidence that "the jury should be per- suaded of the guilt of the prisoner before they find him guilty to the same extent, .and with the same certainty, that they would have in the transaction of their own most im- portant concerns, — * * * the certainty men would re- quire in their own -most important concerns, ' ' 84 And many decisions hold that instructions embodying this rule are correct and may properly be given. 85 Thus, it has been held proper to instruct that ' ' Evidence is sufficient to remove reasonable doubt when it is suffi- cient to convince the judgment of ordinarily prudent men of the truth of a proposition with such force that they would act upon that conviction, without hesitation, in their own most important affairs;" 86 that "if you are not, then, 83 — State v. Crockett, 39 Ore. 76, Kansas. State v. Kearley, 26 Kan. 65 Pae. 447. 77. 84 — 3 Greenl. Bv. (14th Ed.), § 29, Nebraska. Lawhead v. State, 46 note (a). , Neb. 607; Carr v. State, 23 Neb. Starkie says: "A juror ought not 749; Polin v. State, 14 Neb. 540. to condemn unless the evidence ex- Pennsylvania. Com. v. Miller, 139 elude from his mind all reasonable Pa. St. 77, 23 Am. St. Rep. 170. doubt as to the guilt of the accused, South Dakota. State v. Eaiee, 24 and, as has been well observed, S. D. 111. unless he be so convinced by the evi- Wisconsin. Emery v. State, 92 dence that he would venture to act Wis. 146; Anderson v. State, 41 Wis. upon that conviction in matters of 430. See State v. Neel, 23 Utah 541, the highest concern and importance 65 Pae. 494; State v. Dickey, 48 W. to his own interests." Starkie, Ev. Va. 325. (9th Ed.), 865. , Contra rule, see this section, post. 85— Indiana. Heyl v. State, 109 86— Jarrell v. State, 58 Ind. 293. Ind. 589; Stout v. State, 90 Ind. 1; An instruction in Stout v. State, 90 Jarrell v. State, 58 Ind. 293. Ind. 1, almost identical with the Iowa. State v. Schaff er, 74 Iowa above, was approved. 704; State v. Ostrander, 18 Iowa 435; Stet v. Nash, 7 Iowa 347. § 304] Instructions on Reasonable Doubt, 659 so satisfied and convinced of defendant's guilt that you would act upon that conviction in matters of highest im- portance to yourselves, you should give the defendant the benefit of your doubt, and acquit;" 87 or that "to exclude such doubt, the evidence must be such as to produce in the minds of prudent men such certainty , that they would act on the conviction, without hesitation, in their own most im- portant affairs." 88 The following instruction attempting to state this rule has been condemned as not sufficiently clear and intelligible : "The words 'reasonable doubt' mean what they imply; that is, that the doubt must be a reasonable one, — such a doubt as might exist in the mind of a man of ordinary prudence, when he was called upon to determine which of two courses he would pursue in a matter of grave importance -to him- self, when two courses are open to him, and the taking of one would lead to a different result from the taking of the other, and it would be impossible for him to determine as to which of the two results would be most advantageous to him." 89 Some decisions distinctly and unequivocally repudiate the rules stated in the preceding paragraph, at least so far as stating them to the jury in instructions' is con- cerned. 90 The view taken by these decisions is that instructions of this nature deprive the defendant of the benefit of a rea- sonable doubt, by lessening the quantum of evidence neces- sary to a conviction, and that men frequently act in their 87 — State v. Schaffer, 74 Iowa 704. Dakota. Territory v. Bannigan, 1 88— State v. Kearley, 26 Kan. 77. Dak. 451. 89 — State v. Bridges, 29 Kan. 138. Kentucky. Jane v. Com., 2 Mete. 90 — Alabama. Bay v. State, 50 30. Ala. 104. Missouri. State v. Crawford, 34 California. People v. Wohlfrom Mo. 200. (Cal.), 26 Pae. 236; People v. Bern- North Carolina. State v. Oscar, merly, 87 Cal. 117, 25 Pac. 266; Peo- 52 N. 0. 305. pie v. Brannon, 47 Cal. 96. 660 Instructions to- Juries. [§ 304 most important affairs upon a mere preponderance of evi- dence. 91 Thus it has been said : " It is a mistake to say that there cannot remain a reasonable donbt, when even the evidence is such that a man of prudence would act upon it in his own affairs of the greatest importance. ' ' 92 "Men frequently act in their own grave and important concerns without a firm conviction that the conclusion they act upon is correct; but, having deliberately weighed all the facts and circumstances known to them, they form a con- clusion, upon which they proceed to act, although they may not be fully convinced of its correctness." 93 Accordingly, the following instructions have been dis- approved and held reversible error: It is the jury's duty to convict if they are "satisfied of the guilt of the defendant to such a moral certainty as would influence the minds of the jury in the important affairs of life ; " 94 that the jury should convict if it be proven to their satisfaction "that there is that degree of certainty in the case that they would act on it in their own grave and important concerns ; " 95 or that, "to exclude the rational doubt, the evidence should be such as that men of fair, ordinary capacity would act upon in matters of high importance to themselves. ' ' 96 There is also a class of cases in which instructions using the words ' ' important affairs ' ' have been sustained ; 97 as that the jury, in order to render a verdict of guilty, must find the facts to be established to such a degree of certainty as they would regard as sufficient in the important affairs of life. 98 So the court may instruct that, "by 'reasonable doubt,' 91— People v. Brannon, 47 Cal. 96. 96— State v. Oscar, 52 N. C. 305. 92 — People v. Bemmerly, 87 Cal. , 97— United States v. Wright, 16 117, 25 Pac. 266. Fed. 112. 93— Jane v. Com., 2 Mete. (Ky.) 98— United States v. Wright, 16 30. Fed. 112. 94 — People v. Brannon, 47 Cal. 96. 95— Jane v. Com., 2 Mete. (Ky.) 30. § 304] Instructions, on Beasonable Doubt. 661 I do not mean any fanciful conjecture or strained inference, but I mean such a doubt as a reasonable man would act upon, or decline to act upon, when his own concerns were involved, — a doubt for which a good reason can be given, which reason must be based on the evidence, or the want of evidence." 99 But an instruction, after stating that accused is entitled to the benefit of a reasonable doubt, that ' ' the doubt must not be a mere possible doubt, but it must be a doubt sus- tained by the evidence, upon a review of all the facts and circumstances of the case, such as a reasonable man would act upon in any of the important concerns of life, ' ' is erro- neous, as calculated to mislead. 1 And an instruction that a reasonable doubt is "such as you would be willing to act upon in more weighty and im- portant matters relating to your own affairs," if it stands alone, is questionable. 2 These decisions, however, are clearly against the weight of authority. A larger number of decisions hold that such instructions are too narrow, and fall short of stating the rule. 3 They hold that a juryman in a criminal case must use all the reason, prudence and judgment which a man would exercise in the "most important" affairs of life, and that an instruction authorizing the use of any less degree of reason, prudence and judgment is erroneous ; 4 that the cer- tainty of guilt "must be such a certainty as would justify to the mind action, not only in matters of importance, but 99— United States v. Jackson, 29 18 Minn. 208 (Gil. 191); State v. Fed. 503. Dineen, 10 Minn. 407 (Gil. 325). 1 — Bray v. State, 41 Tex. 560. Pennsylvania. Com. v. Miller, 139 2— State v. Neel, 23 Utah 541, 65 Pa. St. 77, 23 Am. St. Rep. 170. Pac. 494. Wisconsin. Emery v. State, 92 3 — Florida. Jenkins v. State, 35 Wis. 146; Anderson v. State, 41 Wis. Fla. 737, 48 Am. St. Rep. 267. 430. . Indiana. Bradley v. State, 31 Ind. Wyoming. ' Palmerston v. Terri- 492. tory, 3 Wyo. 333, 23 Pac. 73. Minnesota. State v. Shettleworth, 4 — Emery v. State, 92 Wis. 146. 662 Instructions to Juries. • [§ 304 in those involving the highest import, involving the dearest interests. ' ' 5 In accordance with these views, the following instructions have been condemned: "It is such a doubt as would in- fluence and control you in your actions in any of the impor- tant business transactions of life." 6 "The proof is deemed sufficient when the evidence is sufficient to impress the judg- ment of ordinarily prudent men with a conviction on which they would act in an important affair of their own. ' ' 7 The following instructions have also been condemned, probably for the same reasons: "The jury must determine that fact according to the evidence, and just as they would determine any fact in their own private affairs." 8 "If the same quantity and quality of evidence offered here was offered to a reasonably careful business man, as to impor- tant business transactions, and it would induce him to act in his important business matters, there cannot be said to be a reasonable doubt." 9 § 305. Absence of reasonable doubt as equivalent to ' 'moral certainty," or "reasonable and moral 'certainty." An instruction using the words "morally certain" as equivalent to "beyond a reasonable doubt" is not objec- tionable, the terms being legal equivalents. 10 Absence of reasonable doubt has been declared to be "such a moral certainty as convinces the minds of the tribunal, as reason- able men, beyond all reasonable doubt," n or as "that state of the case which, after the entire comparison and consider- ation of all the evidence, leaves the minds of jurors in that v 5— Bradley v. State, 31 Ind. 492. 10 — Stewart v. State, 88 Ark. 602; 6— Com. v. Miller, 139 Pa. St. 77, Hendrix v. United States, 2 Okla. Cr. 23 Am. St. Rep. 170. 240, 101 Pao. 125; State v. Wappen- 7 — Palmerston v. Territory, 3 Wyo. stein, 67 Wash. 502, 121 Pac. 989. 333, 23 Pae. 73. 11— Reg. v. Sterne, Surrey Sum. 8 — Territory v. Lopez, 3 N. M. Ass. 1843, cited in 3 Greenl. Ev., (Gild.) 156, 2 Pac. 364; 3 N. M. §29. (Johnson) 104, 2 Pac. 364. 9 — State v. Shettleworth, 18 Minn. 208 (Gil. 191). § 305] Instbuctions on Seasonable Doubt. 663 condition that they cannot say that they feel an abiding conviction, to a moral certainty, of the truth of the charge." 12 Accordingly, it has been held proper to instruct that, "unless the evidence against the prisoner should be such as to exclude, to a moral certainty, every hypothesis but that of his guilt of the offense imputed to him, they must find him [the defendant] not guilty," 13 or to state that, "A juror is understood to entertain a reasonable doubt when he has not an abiding conviction, to a moral certainty, that the party accused is guilty." 14 Instructions substantially the same as these have been upheld in a number of other cases, 15 and their refusal held erroneous, 16 although there is one case to the contrary. 17 In some cases, instructions have been approved which are the same in substance as those just cited, except that they use the expression, "to a reasonable and moral cer- tainty, ' ' instead of "to a moral certainty. " 18 It has ac- cordingly been held proper to instruct that "a reasonable doubt arises when the evidence is not sufficient to satisfy the minds of the jury, to a moral or reasonable certainty, of 12 — Com. v. Webster, 5 Cush. atruetion, saying: "We know of no (Mass.) 295, 52 Am. Dec. 711n. ease by which a charge like the one 13 — Eiley v. State, 88 Ala. 193. asked has ever been recognized as 14 — State v. Vansant, 80 Mo. 72. a legal charge, — no once in which 15 — Simmons v. State, 158 Ala. 8; such a charge was ever before asked. Lowe v. State, 88 Ala. 8; Mc- Its very novelty was a sufficient Kleroy v. State, 77 Ala. 95; Coleman 'reason for its refusal. It is a maxim v. State, 59 Ala. 52; Turbeville v. of the law that 'the old way is th,e State, 40 Ala. 715; People v. Padillia, safe way.' " McAlpine v. State, 47 42 Cal. 536. See also, Gray v. State, Ala. 78. It will be seen from an ex- 42 Fla. 174. amination of other Alabama cases 16 — Williams v. State, 52 Ala. 411. cited in this section that this case 17 — In one case the court was is in direct conflict with them. asked to charge that the defendant 18 — Dunn v. People, 109 111. 635; could not be convicted unless the Sullivan v. State, 52 Ind. 309; jury were satisfied by the' evidence, Com. v. Costley, 118 Mass. l- y Com. to a moral certainty, that the de- v. Webster, 5 Cush. (Mass.) 295, 52 fendant was guilty. The reviewing Am. Dec. 711n. court sustained a refusal of this in- 664 Instructions to Juries. [§ 305 the defendant's guilt," 19 but it is not proper, however, to instruct that ' ' persons sometimes say they are morally cer- tain of the existence of a fact or facts, but have not the evidence to prove it. This is the condition of mind one is in when convinced beyond a reasonable doubt. ' ' 20 An instruction that ' ' a reasonable doubt is an impression, after a full comparison and consideration of all the evi- dence, that does not amount to a certainty that the charge against the accused is true," is vicious in that it imports that the jury cannot convict unless they reach a conclusion, amounting to a certainty, without any qualification what- ever, — an absolute certainty, — that the charge against the accused is true, thus requiring an impossibility. There can be no such thing as absolute certainty. The jury may be convinced to a moral certainty, and hence those who have undertaken to define a reasonable doubt usually qualify the word "certainty" by employing the word "nigral," or some equivalent word or phrase. 21 §306. Absence of reasonable doubt as equivalent to an "abiding conviction to a moral certainty." An instruction that, "by a reasonable doubt is meant a doubt based on reason, and which is reasonable in view of all the evidence; and if, after an impartial consideration and comparison of all the evidence in the case, you can can- didly say that you are not satisfied of the defendant's guilt, you have a reasonable doubt ; but, if, after such impartial consideration and comparison of all the evidence, you can truthfully say that you have an abiding conviction of the defendant 's guilt, such as you would be willing to act upon in more weighty and important matters relating to your own affairs, you have no reasonable doubt. It must be a real, substantial doubt, and not one that is merely possible or imaginary. It should come to the mind spontaneously, 19— Sullivan v. State, 52 Ind. 309. 21— State v. Powers, 59 S. C. 200. 20— Heldt v. State, 20 Neb. 492, 57 Am. Eep. 835n. § 307] ' Instructions on Eeasonable Doubt. 665 and should fairly, naturally, and reasonably arise out of the evidence as given in the case, ' ' is not erroneous. 22 It has also been held proper to instruct that ' ' a juror is understood to entertain a reasonable doubt when he has not an abiding conviction, to a moral certainty, that the party accused is guilty as charged," 23 or to instruct that the state of mind excluding a reasonable doubt "is that state of the case which, after the entire comparison and considera- tion of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding convic- tion, to a moral certainty, of the truth of the charge." 24 And an instruction that "if, after a careful comparison of the evidence and a full consideration of the whole case, your minds are brought to an abiding conviction beyond a reasonable doubt, ' ' etc., is not faulty for failure to use the words " to a moral certainty, " 25 as the instruction requires and implies moral certainty. On the other hand, it has been held proper to state to the jury the converse of this propo- sition, — '"that if, after a careful consideration and exami- nation of all the evidence in the case, they still have an abiding confidence, to a moral certainty, that the defendant is guilty, this is sufficient to authorize them to find him guilty." 26 § 307. Defining as "satisfaction" of guilt. In a number of cases it has been held that an instruction that a reasonable doubt is one that must "satisfy" a rea- sonable mind, is error. 27 An instruction that "if there is one single fact proved to the satisfaction of the jury which is inconsistent with de- 22— State v. Neel, 23 Utah 541, 65 26— MoKee v. State, 82 Ala. 32. Pac. 494. 27— Vaaquez v. State, 54 Fla. 127, 23— State v. Vansant, .80 Mo. 67, 127 Am. St. Eep. 129; Sims v. State, 24— Com. v. Webster, 5 Cush. 54 Fla. 100; Wood v. State, 31 Fla. (Mass.) 295; State v. McCune, 16 221. See also, Smith v. State, 17 Utah 170, 51 Pae. 818. Wyo. 481, 101 Pae. 847. 25— State v. Van Tassel, 103 Iowa 6. (>(')() Instructions to Jueies. [§ 307 fend ant's guilt, this is sufficient to raise a reasonable doubt, and the jury should acquit," is properly refused, as in- vasive of the province of the jury, and also as misleading. 28 To instruct that an accused need not be proved guilty beyond a possibility of doubt, is proper, 29 and where the court has instructed that the jury must find from the evi- dence beyond a reasonable doubt that the defendant com- mitted the crime, an instruction as to the evidence, satis- fying the jury but omitting the words "of the existence of facts necessary to be established to constitute the offense," is not erroneous. 30 In California it is settled law that a conviction cannot be had unless the jury are "entirely satisfied" of defend- ant's guilt; 31 and it has accordingly been held reversible error in that jurisdiction to give the following instructions : "You are not legally bound to acquit him [the defendant] because you may not be entirely satisfied that the defendant and no other person committed the alleged offense." 32 "All that is necessary in order to justify the jury in finding the defendant guilty is that they shall be satisfied from the evidence of the defendant 's guilt to a moral certainty, and beyond a reasonable doubt, although they may not be en- tirely satisfied from the evidence that the defendant and no other person committed the alleged offense. ' ' 33 The court, in condemning this latter instruction, said in one of these cases that this instruction, "in effect, assigns a lower grade to moral certainty beyond a reasonable doubt than is given to it by the law, and permits the jury to con- vict without being entirely satisfied that the defendant is guilty of the offense charged. When the jury are satisfied to a moral certainty and beyond a reasonable doubt, they 28— Ex parte Davis, 184 Ala. 26. 191. See also, other California de- 29 — People v. Depew, 237 111. 574. cisions cited in this section. 30— State v. Ingraham, 118 Minn. 32 — People v. Brown, 59 Cal. 345. 13. 33— People v. Kerriek, 52 Cal. 31— People v. Phipps, 39 Cal. 326, 446; People v. Padillia, 42 Cal. 535; overruling People v. Cronin, 34 Cal. People v. Phipps, 39 Cal. 326. § 307] Instructions on Reasonable Doubt. 667 are entirely satisfied. The truth of any fact which is to be proven by evidence cannot be established beyond the possi- bility of a doubt, and yet the jury may be entirely satisfied of its truth. Anything short of entire satisfaction on the part of the jury of the truth of the charge necessarily im- plies, in case of a conviction, that, in their opinion, the charge is sustained by a mere preponderance of evidence," which is not sufficient for a conviction. 34 An instruction: "But if, upon a full and fair considera- tion of all the evidence in the case, you are fairly and clearly satisfied that the defendant committed the crime charged against him, you should find him guilty by your verdict, notwithstanding the proof of his good character*," — sufficiently conveys the idea that the jury must be "en- tirely satisfied of the defendant's guilt." 35 In Nevada, a different view of the law is taken, and it has been held proper to instruct the jury that they "must be satisfied, from the evidence, of the guilt of the defendant, beyond a reasonable doubt, before the jury can legally find him guilty of the crime charged against him; but in order to justify the jury in finding the defendant guilty of said crime, it is not necessary that the jury should be satisfied, from the evidence, of his guilt, beyond the possibility of a doubt. All that is necessary in order to justify the jury in finding the defendant guilty is that they shall be satisfied, from the evidence, of the defendant 's guilt, to a moral cer- tainty and beyond a reasonable doubt, although it may not be entirely proven that the defendant, and no other or different person, committed the alleged offense. And if the jury are satisfied from the evidence, beyond a reasonable doubt, that the defendant committed the crime charged against him, they are not legally bound to acquit him be- cause they may not be entirely satisfied that the defendant, 34— People v. Padillia, 42 Cal. 535. 35— People v. Ribolsi, 89 Cal. 492, 26 Pae. 1082. 668 Instructions to Juries. [§ 307 and no other person, committed! the alleged offense. " 36 In sustaining this instruction it was said: "If a man believes that a defendant may possibly be innocent, he cannot be said to be 'entirely satisfied' of his guilt, and yet he may be satisfied- of it beyond a reasonable doubt, and may con- vict." 37 § 308. Probability of innocence may create reasonable doubt. It is apparent that a probability of innocence will create a reasonable doubt of defendant's guilt; hence it will be error to refuse an instruction that "a probability of the defendant 's innocence is a just foundation for a reasonable doubt of his guilt, and therefore for his acquittal;" 38 or that, "if there is a probability of defendant's innocence," the jury must acquit. 39 So, an instruction that the jury are not at liberty to go outside of the evidence in the case to find a reason for doubting the guilt or innocence of the defendant, is not objectionable as erroneous to instruct that "a reasonable doubt is not probability only, or conjecture, or supposition. The doubt which should properly induce a jury to withhold a verdict of guilty should be such a doubt as would reason- ably arise from the testimony before them." 40 It is proper to instruct not to acquit because it is pos- sible that the defendant is innocent. 41 It has been noted in a prior se.ction that the giving of 36 — State v. Bryan, 19 Nev. 365, language, prefixed by the assertion 11 Pae. 317; State v. Nelson, 11 Nev. that "a reasonable' doubt has been 334, following People v. Cronin, 34 defined to be a doubt for which a Cal. 191, which was afterwards over- reason could be given, ' ' was held er- luled. roneous because it defined a reason- 37 — State v. Nelson, 11 Nev. 334. able doubt as one for which a reason 38 — Cohen v. State, 50 Ala. 108; can be given. Bain v. State, 74 Ala. 38, overruling 39— Shaw v. State, 125 Ala. 80. Williams v. State, 52 Ala. 411, and 40 — Browning v. State, 30 Miss. distinguishing Bay v. State, 50 Ala. 656. 104, where a charge in the same 41 — People v. Depew, 237 111. 574. § 309] Instructions on Eeasonable Doubt. 669 sufficient instructions as to reasonable doubt renders un- necessary instructions as to tbe presumption of innocence. 42 § 309. Negative definitions of reasonable doubt. While definitions of reasonable doubt of a negative nature are frequently given, and have been approved in a number of cases, 43 such definitions may, from their wording, be erroneous. Accordingly, an instruction that, ' ' a reasonable doubt is not probability only, or conjecture, or supposition. The doubt which should properly induce a jury to withhold a verdict of guilty should be such a doubt as would reasonably arise from the testimony before them," has been held erro- neous, as imposing on the jury the obligation to convict, although the evidence might preponderate in favor of the accused. 44 An instruction that, "if the jury believe from the evi- dence that the defendant is guilty as charged in the indict-, ment, beyond a reasonable doubt, they must not acquit him because there may be a mere probability of the defendant's innocence, unless such probability be a reasonable proba- bility from all the evidence, ' ' is erroneous because of the in- compatibility between belief in defendant's guilt beyond a reasonable doubt and probability of his innocence. 45 An instruction to the jury that, "while it is true they are not authorized to convict unless, from all the evidence, they believe, beyond every reasonable doubt, that defendant is guilty, still this does not mean, that they must know he is guilty, for mathematical certainty is not required in any case ; but if they, from a full and fair comparison of all the evidence in the case, believe he is guilty, then this is suffi- cient, and you should convict him, ' ' is incurably erroneous. The conclusion deduced from the attempted definition of "reasonable doubt" is that it is a mere matter of belief. 46 42 — See § 309, ante. 45— Smith v. State, 92 Ala. 30. 43 — See this section, post. 46 — Jeffries v. State, 77 Miss. 757. 44 — Browning v. State, 30 Miss. 657. 670 Instructions to Juries. [§ 309 It has also been held error to give an instruction stating that, " it is not a reasonable doubt, which may be raised by conjecturing something for which there is no foundation nor suggestion in the evidence adduced." 47 An instruction that "the state is not required to prove defendant's guilt beyond all doubt, but only to prove guilt beyond a reasonable doubt, ' ' is not ambiguous or mislead- ing; 48 and it has been held proper to instruct that: "The doubt * * * must be real, not captious or imagi- nary." 49 "A serious, substantial and well-founded doubt, and not the mere possibility of a doubt." 50 Not "a doubt generated by sympathy for the accused." 51 Not "a doubt produced by undue sensibility in the mind of any juror, in view of the consequences of his verdict." 52 "Not a vague or uncertain doubt." 53 "Not a mere possible doubt, nor is it a captious or imaginary doubt. " 54 A " real and substan- tial, and not an imaginary or speculative, doubt." 5B Not a "fanciful conjecture or strained inference." 56 "Not a mere imaginary, captious, or possible doubt, but a fair doubt, based upon reason and common sense, and growing 47 — Densmore v. State, 67 Ind. Smith v. People, 74 111. 144; Earll 306, 33 Am. Rep. 96, in which the v. People, 73 111. 334; Kennedy v. reason assigned was that this defini- People, 40 111. 488. tion excludes all reasonable - doubts 51 — State v. 'Robinson, 27 S. G. arising from lack or want of evi- , 615. dence. 52— Watt v. People, 126 111. 9, 1 48— Littleton v. State, 128 Ala. 31. L. R. A. 403; Spies v. People, 122 49— State v. Ostrander, 18 Iowa HI. 1, 3 Am. St. Rep. 320n; State v. 437; People v. Finley, 38 Mich. 482. Potts, 20 Nev. 389, 22 Pae. 75l But see, State v. Swain, 68 Mo. 605; 53 — State v. Dickey, 48" W. Va. Smith v. State, 9 Tex. App. 150, in 325. which the use of these words is con- 54 — People v. Dewey, 2 Idaho 79. demned. The Missouri court, in See also, Knight v. State, 160 Ala. passing on this question, said: "It 58. Where a similar instruction was is better to adhere to well-settled criticized as argumentative, instructions than to attempt new de- 55 — United States v. Keller, 19 partures and experiments in orim- Fed. 633. inal procedure." 56— United States v. Jackson, 29 50 — Minich v. People, 8 Colo. 454; Ped. 503. § 309] Instructions on Beasonable Doubt. 671 out of the testimony in the case. " 57 " Not a mere guess— a mere surmise — that one may not be guilty of what is charged." 58 Not "a mere misgiving of the imagination, suggestion of ingenuity, or sophistry, or misplaced sym- pathy. " 59 " Not a mere possible doubt, because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt." 60 "Not a possible doubt, not a conjectured doubt, not an imaginary doubt, not a doubt of the absolute certainty of the guilt of the accused, because everything relating to human affairs, and depending upon moral evidence, is open to conjectural or imaginary doubt, and because absolute certainty is not required by law." 61 "The doubt which requires an ac- quittal must be actual and substantial, not mere possibility or speculation. It is not a mere possible doubt, because everything relating to human affairs, and depending upon moral evidence, is open to some possible or imaginary doubt." 62 "That which amounts to mere possibility. only, or to conjecture or supposition, is not what is meant by a reasonable doubt." 63 It "should grow out of the evidence in the case, and not be merely speculative, conjectural, or imaginary." 64 "A substantial doubt of defendant's guilt, with a view to all the evidence in the case, and not a mere possibility of defendant's innocence." 65 "A real, substan- tial, well-founded doubt, arising out of the evidence in the cause, and not a mere possibility that the defendant is inno- 57 — People v. Del Cerro, 9 Cal. 63 — Cicely v. State, 13 Smedes & App. 764, 100 Pac. 887; State v. Mo- M. (Miss.) 202. Cune, 16 Utah 170, 51 Pae. 1089. 64— State v. Krug, 12 Wash. 288, 58 — United States v. Johnson, 26 41 Pae. 126. .Fed. 682. 65— State v. David, 131 Mo. 380. 59 — State v. Murphy, 6 Ala. 846. To the same effect, see State v. 60 — Charge of Chief Justice Shaw Fisher, 162 Mo. 169; State v. Adair, in Com. v. Webster, 5 Cush. (Mass.) 160 Mo. 391; State v. Cushenberry, 295, 52 Am. Dec. 711n. 157 Mo. 168; State v, Holloway, 156 61— Dunn v. People, 109 111. 635. Mo. 222; State v. Duncan, J42 Mo. 62— Little v. State, 89 Ala. 99. 456. 672 Instructions to Juries. [§ 309 cent." eo "Not a far-fetched one [doubt] ; it is not a specu- lative one; it is not an arbitrary one; but it is just what it assumes to be, — a reasonable doubt. ' ' 67 Not ' ' a doubt sug- gested by the ingenuity of counsel, or by your own ingenu- ity, not legitimately warranted by the testimony, or one born of a merciful inclination or disposition to permit the defendant to escape the penalty of the law, or one prompted by sympathy for him, or those connected with him." 68 It is proper to instruct that the "mere possibility that the defendant may be innocent will not warrant a verdict of not guilty, " 69 or that, though ' ' the defendant is entitled to the benefit of any doubts they [the jury] might entertain of his guilt, they must be reasonable doubts, not ' a may be so, ' or ' a might be so ; ' " 70 or that they ' ' should not go be- yond the evidence to hunt for doubts, nor * * * enter- tain such doubts as are merely chimerical, or based on groundless conjecture." 71 An instruction, in denning reasonable doubt, that the jury ' ' should not create sources of material doubt by resort- ing to trivial or fanciful suppositions or remote conjectures as to a probable state of facts differing from that established from the evidence, ' ' is not erroneous as impliedly authoriz- ing the jury to create such doubt' in that manner, provided ' ' the probable state of facts ' ' did not differ from that estab- lished by the evidence. 72 So it has been held proper to instruct that, "if there be any reasonable hypothesis, — not a mere possible one, — any reasonable hypothesis upon which the conduct of the de- fendant can be explained consistently with his innocence, ' ' this should create a reasonable doubt. This charge is not objectionable on the ground that it assumes the guilt of the 66— State v. Blunt, 91 Mo. 503. 70— Giles v. State, 6 Ga. 276. 67 — McGuire v. People, 44 Mieh. 71 — See State v. Elsham, 70 Iowa 286, 38 Am. Rep. 265. 531; State v. Pierce, 65 Iowa 89. 68— United States v. Harper, 33 72— McArthur v. State, 60 Neb. Fed. 471. 390. 69— See State v. Vansant, 80 Mo. 67. § 310] Instructions on Reasonable Doubt. 673 defendant, and imposes on Mm the burden of proof to show that his conduct was reasonable and proper, and that he did not commit the crime he is charged with, instead of being upon the prosecution to show that all his acts and conduct have been inconsistent with his innocence. 73 § 310. Reasonable doubt not raised by argument of coun- sel — Not a doubt as to law. The court cannot submit a case to the jury upon the rela- tive strength of the arguments of the respective counsel, and it is proper to refuse an instruction or to strike out a clause giving the defendant the benefit of any doubt created by argument of counsel, as it renders the rule as to reason- able doubt doubtful of comprehension. 74 In those jurisdictions where juries are judges of the law in criminal cases, it is held that the reasonable doubt which entitles the defendant to an acquittal is not a doubt as to the law. 7 ? It has accordingly been held proper to refuse an instruc- tion "that, if they entertained a doubt as to the law, the prisoner is just as much entitled to the benefit of those doubts as if they applied to the facts ; that if they entertain a reasonable doubt as to whether the evidence is applicable to the law as given them in charge, the prisoner is entitled to the benefit of that, doubt, and it would be their duty to acquit." 76 Or that, "if the jury entertain the slightest doubt upon the questions of law presented by the court, the prisoner is entitled to the benefit of such doubt, and in no instance are they permitted to apply any rule of law more prejudicial to the prisoner than that laid down by the court." 77 73 — People v. Winters, 93 Cal. 277, 75— Oneil v. State, 48 Ga. 66; 28 Pac. 946.- State v. Meyer, 58 Vt. 457. 74 — People v. Ammerman, 118 Cal. 76 — Oneil v. State, 48 Ga. 66. 23, 50 Pac. 15. See also, Horton v. 77 — State v. Meyer, 58 Vt. 457. Com., 99 Va. 848. BlashfieldVol.1— 43 674 Instructions to Juries. [§ 311 §311. Reasonable doubt as doubt arising from the evi- dence or want of evidence. Ordinarily, it is proper to instruct that a reasonable doubt must arise from the evidence, 78 or "from the evidence or the want of evidence," 79 and an instruction containing a different statement is properly refused ; 80 but an instruc- tion merely denning reasonable doubt cannot be objected to as making no reference to the evidence. 81 In one case it was said that a party who desires an in- struction that reasonable doubt may arise from "want of evidence" should ordinarily ask it, 82 and where the jury are fully and correctly instructed on the law as to a defend- ant's statement, and as to reasonable doubt, the omission 'to charge that such doubt may grow out of the statement is not error. 83 The following instructions on this head have been ap- proved : ' ' The doubt which should properly induce a jury to withhold a verdict of guilty should be such a doubt as would reasonably arise from the evidence before them. ' ' 84 "An actual, substantial doubt, arising from the evidence or the want of evidence." 8B "An actual, substantial doubt of guilt arising from the evidence or want of evidence in the case." 86 "A reasonable doubt means, in law, a serious, substantial, and well-founded doubt, and not the mere pos- sibility of a doubt, and the jury have no right to go outside of the evidence to search for or hunt up doubts, in order to 78 — Simmons v. State, 158 Ala. 8; statement is properly refused. Peo- Bowler v. State, 41 Miss. 570; pie v. Zajicek, 233 111. 198. Cicely v. State, 13 Smedes & M. 81— State v. Gunnoe, — W. Va. — , (Miss.) 202. 83 S. E. 64. 79-Earll v. People, 73 111. 329; 82-Herman-v. State, 75 Miss. 340. t c j o* 4. »o -vr i. ™» 83— Everett v. State, 15 Ga. App. Langford, v. State, 32 Neb. 782; ' r * State v. Eaice, 24 S. D. Ill; United 84 _ cicel v . gtat 13 Sme(Jes & States v. Jones, 31 Fed. 718. M (Miss) 2Q2 80— Reasonable doubt warranting 85— Langford v. State, 32 Neb. an acquittal arises from the evi- 782. dence, or the lack of evidence, and 86 — Ferguson v. State, 52 Neb. an instruction containing a different 432, 66 Am. St. Eep. 512. § 311] Instructions on Reasonable Doubt. 675 acquit defendant, not arising from the evidence or want of evidence." ST In a misdemeanor case, a statement that a reasonable doubt "is an actual substantial doubt arising either from the evidence or want of evidence in the case, ' ' is not erro- neous. 88 And an instruction "that the defendant is pre- sumed to be innocent, and it devolves upon the state to prove his guilt beyond a reasonable doubt, and, unless the state has established the guilt of the defendant, as charged in the indictment, to your satisfaction beyond a reasonable doubt, you should give the defendant the benefit of such doubt, and return a verdict of not guilty; but such a doubt, to authorize an acquittal on that ground alone, should be a substantial doubt of guilt arising from the evidence in the case, and not a mere possibility of innocence," — is not ob- jectionable on the ground that it does not allow an acquittal on account of any reasonable doubt arising excluding a doubt founded upon the knowledge of natural laws incon- sistent with the hypothesis of guilt contended for by the prosecution, when there is nothing in the record to indicate that the prosecution contended for any hypothesis incon- sistent with natural law, or that evidence of any natural law would have been relevant or material. 89 The use of the words ' ' must be based on the evidence or sprung up from the evidence" is not subject to criticism on the ground that it excludes a doubt based on a deficiency of the evidence, 90 and an instruction defining a reasonable doubt, and stating that "a doubt, to justify an acquittal, must be reasonable and arise from a candid and impartial consideration of all the evidence in the case," is not erro- i 87 — Earll v. People, 73 111. 329. doubt is one suggested by, or aris- 88 — Goemann v. State, 94 Neb. 582. ing out of, the proof made, ' ' on the 89 — People. V. Donguli, 92 Cal. 607, ground that such instruction ex- 28 Pae. 782. eluded all reasonable doubt that 90 — Staton v. State, 8 Ala. App. might arigfe from lack of evidence or 221; Hedger v. State, 144 Wis. 279. want of evidence. Densmore v. Contra, in one case it was held State, 67 Ind. 306, 33 Am. Eep. 96. error to instruct that "a reasonable 676 Instructions to Jtjeies. [§ 311 neous as preventing the doubt from arising from a want of evidence. 91 An instruction in a murder case, to consider all the evi- dence and to acquit if there is a reasonable doubt of guilt, does not have the effect of excluding such doubt when raised by the testimony of the defendant himself. 92 Where there is positive testimony that the offense charged was committed, and also testimony to the contrary, it is not error to instruct that, "if you have a reasonable doubt of the guilt of defendant from the evidence, you will acquit," as in such a case the doubt must be engendered by the testi- mony, and not by a want of evidence. 93 It has been held improper to instruct that the evidence "includes not only the sworn testimony of the witnesses who have testified, but all the circumstances surrounding the tragedy;" 94 or that "reasonable doubts usually arise from either want of evidence, or where there was a conflict of evidence, " in a case where the question of the doubt did riot arise from either of these causes, but turned solely upon the internal credibility of an explanation which the de- fendant had given of the circumstances against him, when they were first brought to his notice. 95 It is proper to refuse a request that the jury should know to a moral certainty that they have all the facts before them before they can convict, and that if they feel, after consid- ering the evidence, that some important matter of proof has been omitted, and their minds were not satisfied, this was a reasonable doubt, upon which they should acquit. 96 An instruction informing the jury as to the law, if they find certain facts beyond a reasonable doubt, without sug- gesting the weight to be given the testimony as proving any fact, is erroneous. 97 91— Moore v. State, 4 Okla. Cr. 94— Long v. State, S3 Neb. 33. 212, 111 Pac. 822. 95— McElven v. State, 30 Ga. 869. 92— People v. Curtrigbt, 258 111. 96— Gray v. State, 42 Fla. 174. 430. 97— Bedford v. State, — Tex. Cr. 93 — Whitesides v. State, 42 Tex. App. — , 170 S. W. 727. Cr. App. 151. § 312] Insteuctions on Reasonable Doubt. 677 § 312. Doctrine applicable only to evidence considered as a whole. The reasonable doubt which will justify and require an acquittal of an accused must not be as to any particular fact in the case, but when the evidence as a whole is con- sidered, 98 and an instruction which does not require the rea- sonable doubt which will justify acquittal to ' ' arise from a consideration of all of the evidence in the case," or words of similar import, is not in the best form." An instruction requiring an acquittal upon a reasonable doubt resting upon a part of the evidence, considered sepa- rately from the whole evidence, is properly refused. 1 Ac- cording to the weight of authority, it will be sufficient to charge that the jury should acquit if, upon the whole evi- dence, they have a reasonable doubt of defendant's guilt. It is not necessary to charge that the jury must be satisfied beyond a reasonable doubt of each material fact before they can convict. The former instruction includes the latter, and is a sufficient direction that each material fact must be estab- lished beyond a reasonable doubt, while the latter is objec- tionable as singling out some particular fact for the consid- eration of the jury, and as diverting their attention from a consideration of the evidence, taken as a whole. 2 98— Barker v. State, 126 Ala. 69; Georgia. Nix v. State, 97 Ga. 211; Weaver v. People, 132 111. 536; Can- v. State, 84 Ga. 250. Crews v. People, 120 111. 317; Davis Illinois. Lyons v. People, 137 111. v. People, 114 111. 98; State v. Hen- 602; Weaver v. People, 132 111. 536. nessy, 55 Iowa 299; State v. Hayden, Iowa. State v. Perigo, 80 Iowa 45 Iowa 11; McCullough v. State, 23 37. state v. Sehaffer, 74 Iowa 704; Tex. App. 626. See also, Bodine v. state v _ Stewart, 52 Iowa 284; State State, 129 Ala. 106; State v. Trapp, V- CulI&n> 51 Iowa 112 . state v. 56 Ore. 588, 109 Pae. 1094; Smith v. H fl ^ Iowa n gtate v M State, 17 Wyo. 481, 101 Pac 847 ^ I(wa ^ ^ 99— State v. Christian, 253 Mo. 382. 1— Liner v. State, 124 Ala. 1. 2— Alabama. Barker v. State, 126 u - Ke P- uil - . , 6 „ Missouri. State v. Crawford, 34 California. People v. Milgate, 5 Mo - 200 5 sta t e v - Sohoenwald, 31 Cal. 127. Mo. 155; State v. Dunn, 18 Mo. 419. Iowa 39. Kentucky. Jolly v. Com., 22 Ky. 678 Instbuctions to Jubies. [§ 312 In a prosecution for larceny, it is proper to refuse to in- struct that "the jury cannot convict unless they believe from the evidence, beyond a reasonable doubt, that the de- fendant had in his possession the identical money" stolen from the prosecuting witness, as such possession is not necessarily an ingredient of the offense, and it is not re- quired that the jury must believe, beyond a reasonable doubt, every fact introduced in evidence. 3 It is also proper to refuse an instruction that, "if they [the jury] have any reasonable doubt as to whether defend- ant, at the time of the shooting, was under reasonable appre- hension and honest fear that deceased intended and was about to inflict upon him great bodily harm, and that he fired the shots under that belief, and in self-defense, then the jury must acquit;" 4 that, "if you have any reasonable doubt as to whether the declarations were made at the time when E. felt that death was impending and certain to follow almost immediately, and after he had despaired of life, or whether his declarations have been detailed to you by wit- nesses substantially as they were made, you should give the defendant the benefit of the doubt ; " 5 or that, ' ' if the jury have a reasonable doubt whether the circumstances were such as to impress the mind of a reasonable man that he was in great danger of great bodily harm at the time of the New Jersey. Acker v. State, 52 it would be better to charge, in N. J. L. 259. the language of the statute, that, Texas. Thurmond v. State, 27 Tex. "if there be a reasonable doubt of App. 347; McCullough v. State, 23 the defendant being proven to be Tex. App. 626. guilty, he is entitled to an acquital. ' ' United States. United States v. "It is not incumbent upon the Zes Cloya, 35 Fed. 493. court to carve the case or the evi- In Jolly v. Com., 22 Ky. L. Rep. dence into different propositions, and 1622, it was said that while an in- apply the rule to one or more of struction that, "if the jury enter- them severally." Carr v. State, 84 tain a reasonable doubt as to Ga. 250. any facts necessary to constitute 3 — Barker v. State, 126 Ala. 69. defendant 's guilt, they must acquit 4 — Crews v. People, 120 111. 317. him," may not be misleading, 5 — Leigh v. People, 113 111. 372. § 312] Insteuctions on Reasonable Doubt. 679 killing, they must give the prisoner the benefit of the doubt, and acquit him. ' ' 6 A charge to the jury that "if they have a reasonable doubt as to the defendant's guilt, arising out of any part of „the evidence, then they must acquit the defendant," pre- termits all reference to a consideration of the whole evi- dence by the jury, and is misleading. 7 An instruction to find an accused guilty if the jury were convinced beyond a reasonable doubt, "regardless of what you may think of any of the People's witnesses," is erro- neous as misleading, and because it does not state that the jury are to be convinced * ' from the evidence. ' ' 8 Where an indictment charges, in four different counts, four different degrees of a crime, it is not error to refuse to charge "that, if you are reasonably doubtful as to the proof in this case of any material allegation of the indictment, you must acquit the defendant," as the jury in such case could not convict unless they believed the averments of all the counts) although they contain different and inconsistent material averments, — a condition the office of. separate counts in an indictment was designated, among other things, to prevent. 9 Where the court charges "that, upon all the evidence in the case, the jury must be satisfied, beyond a reasonable doubt, of the defendant's guilt," and that it is not necessary that they should find defendant's evidence as to commission of the crime by a third person "true beyond a reasonable doubt, but that they should consider it in connection with the rest of the testimony upon the general question as to his guilt," it is not error to omit to charge "that it was not necessary to the defendant 's defense that the jury be con- vinced that the third person committed the crime, and that their failure to believe his evidence regarding the third 6— Allen v. State, 60 Ala. 19. 8— People v. Gray, 251 111. 431. 7— Gordon v. State, 129 Ala. 113. 9— Littleton v. State, 128 Ala. 31. See also, Bodine v. State, 129 Ala. 106. 680 Instructions to Jueies. [§ 312 person would bear only upon his credit as a witness gen- erally, and that it would be sufficient if that evidence raised a reasonable doubt in their minds as to the defendant's guilt." 10 An instruction that doubt must be real, arise naturally w and not be sought for, has been held not to preclude an examination of the evidence when taken as a whole. 11 So, instructions "that they should weigh all the evidence and reconcile it, if possible, but, if there be irreconcilable con- flict in the evidence, they ought to take that evidence which they think worthy of credit, and give it just such weight as they think it entitled to," and, "in weighing the evidence, each piece and all the evidence should be weighed with all the other evidence, and you should make up your verdict from due consideration of the whole of the evidence. If the jury, after considering all the evidence, have a reasonable doubt of defendant's guilt, arising out of any part of the evidence, they should find him not guilty. But this does not mean that you have got to find every single item of testi- mony to be true before you can convict. If, after weighing all the evidence, you have a reasonable doubt as to any of the elements which constitute any offense charged in this indictment, then you are bound to acquit. It does not mean that you have got to believe every word of the testimony in order to convict, ' ' — are proper. 12 An instruction that the rule requiring the jury to be satis- fied of defendant's guilt beyond a reasonable doubt "does not require that the jury should be satisfied beyond a rea- sonable doubt of each link in the chain of circumstances relied upon to establish the defendant's guilt. It is suffi- cient if, taking the evidence all together, the jury are satis- ' fied, beyond a reasonable doubt, that defendant is guilty, ' ' — is not erroneous. 13 10— State v. Totten, 72 Vt. 73. 12— Bondurant v. State, 125 Ala. 11— People v. Buettner, 233 111. 31. 272, 13 Ann. Cas. 235. 13— Gott v. People, 187 111. 249. § 314] Instructions on Reasonable Doubt. 681 § 313. Same — Contrary view. There are, however, a number of decisions in which it has been held erroneous to refuse to instruct that a reasonable doubt as to a particular fact essential to constitute guilt authorizes an acquittal. Thus, a number of decisions hold it proper and necessary, on 1 request, to give an instruction applying the doctrine of reasonable doubt to the defense of alibi. 14 So, in one case it was held erroneous to refuse an instruction that ' ' if the jury are not satisfied, beyond a rea- sonable doubt, that the accused knew that the goods were stolen, he is entitled to an acquittal. ' ' 15 The court should not select each fact constituting the offense, and instruct the jury that if they have a reasonable doubt as to that fact, they should acquit. It is enough to tell the jury that if, upon the whole case, they have a reason- able doubt of the guilt of the accused, he should be ac- quitted. 16 § 314. Instructions as to number of jurors who must enter- tain a reasonable doubt in order to acquit. An acquittal or conviction of an accused can only be bad where all the jury agree, and while a reasonable doubt in the minds of one or more jurors may authorize a disagree- ment or mistrial, the majority, or even a minority of the jurors are not required to adopt the views of a juror or jurors who have a reasonable doubt of the guilt of the de- fendant. 17 An instruction that "if any member of the jury has a reasonable doubt of the guilt of a defendant, the jury will give the benefit of the doubt to the defendant and not return a verdict of guilty," is misleading in its tendency, 18 14 — See § 326, post. "Each juror, under his oath, must 15 — Com. v. Leonard, 140 Mass. vote according to his own convic- 473, 54 Am. Rep. 485. tion, and the doubt with which he 16 — State v. Dunn, 18 Mo. 419. has to do is the doubt in his own 17 — See Littleton v. State, 128 mind." State v. Sloan, 55 Iowa 217. Ala. 31; State v. Witt, 34 Kan. 488, 18— Turner v. State, 160 Ala. 40. 8 Pac. 769. And see, Troup v. State, 160 Ala. 125. 682 Instructions to Jueies. [§ 314 and it is error to instruct that "if any one of the jury enter- tain a reasonable doubt as to the sufficiency of the proof to establish any material averment in the indictment, you must give the defendant the benefit of the doubt, and acquit the defendant." 19 An instruction that if any one of the jurors, after having duly considered all the evidence, and after having con- sulted with his fellow-jurymen, should entertain a reason- able doubt of the defendant's guilt, in such case they can- not find the defendant guilty, has been held improper, as authorizing an acquittal in case a single juror entertained a doubt of defendant's guilt. 20 It is not the duty of the court to address its instructions to each one of the jurors as individuals, and therefore, if the court has instructed on reasonable doubt generally, it is proper to refuse to instruct that "the law requires that no man shall be convicted of a crime until each and every one of the jury is satisfied by the evidence in the case, to the exclusion of all reasonable doubt, that the defendant is guilty as charged; * * * or, if any one of the jury, after having fully considered all of the evidence, and after having consulted with his fellow jurymen, and candidly considered their views with the purpose of reaching a just conclusion, should entertain such reasonable doubt, the jury cannot, in such case, find the defendant guilty. ' ' 21 In one case, an instruction that "a reasonable doubt is such a doubt as fairly and naturally arises in the minds of the whole jury, after fully and carefully weighing and considering all the evidence which has been introduced," 22 was condemned on the ground that it was liable to convey 19 — State v. Rorabacher, 19 Iowa 21 — State v. dishing, 17 Wash. 155. An instruction the same in sub- 544, 50 Pao. 512. stance was condemned for the same 22 — State v. Stewart, 52 Iowa 284. reason in State v. Witt, 34 Kan. 488, An instruction the same in substance 8 Pac. 769. See also, Littleton v. and almost identical in language was State, 128 Ala. 31. held to have been properly refused 20— State v. Taylor, 134 Mo. 109. in State v. Sloan, 55 Iowa 217, for See also, Reaves v. State, 158 Ala. 5. the same reason. § 314] Instbuctions on Reasonable Doubt. 683 the impression that, unless such doubt was shared by all the jurors, there should be a conviction. 23 The following instruction was condemned for the same reason: "While each juror must be satisfied of the de- fendant's guilt beyond a reasonable doubt, to authorize a conviction, such reasonable doubt, unless entertained by all the jurors, does not warrant an acquittal." 24 In another jurisdiction this decision has been criticised, and a similar instruction— -"If any of the jurors entertain a reasonable doubt as to whether defendant's guilt has been established, you cannot convict the defendant, but you cannot acquit unless all the jurors entertain a reasonable doubt"— upheld. 25 It has been held proper to instruct that ' ' in case any one of the jurors entertains a reasonable doubt as to the guilt of the defendant, he ought not to find the defendant guilty; yet such doubt in the mind of one or more of the jurors ought not to control the action of the other jurors, so as to compel them to give a verdict of acquittal;" 26 and in one case it was held reversible error to refuse an instruction that "if any one of the jury, after having duly considered all the evidence, and after having consulted with his fellow jurymen, should entertain such reasonable doubt, the jury cannot, in such case, find the defendant guilty." 2T Never- 23 — State v. Stewart, 52 Iowa 284. doubt before he can consent to a 24 — Stitz v. State, 104 Ind. 359. verdict of guilty." See also, Asz- See also, State v. Tettaton, 159 Mo. man v. State, 123 Ind. 347, where 354. it was held erroneous to refuse an 25 — State v. Eogers, 56 Kan. 362, instruction that, "so long as you, 43 Pac. 256. or any one of you, have a reasonable 26 — Fassinow v. State, 89 Ind. 235. doubt as to the existence of any of See also, People v. Verduzco, 13 Cal. the several elements necessary to App. 789, 110 Pac. 970. constitute the several crimes above 27 — Castle v. State, 75 Ind. 146, defined, the accused cannot be con- in which it was said: "Each juror victed of such crime," unless it had should feel the responsibility resting already charged as to the individual upon him, as a member of the body, responsibility of jurors. An instruc- and should realize that his own mind tion: "Where a criminal cause is must be convinced of the defend- tried by a jury, the law contemplates ant's guilt beyond a reasonable the concurrence of twelve minds in 684 Insteuctions to Juries. [§314 theless, it has been held proper to refuse an instruction em- bodying this principle in the following language : "If any juror entertain a reasonable doubt of defendant's guilt, he is not required to surrender his convictions because other jurors entertained no such doubts," the court taking the view that there is no necessity for stating such a simple proposition in connection with the ordinary charge in regard to reasonable doubt. 28 So it is proper to refuse an instruction that each individual juror must be convinced beyond a reasonable doubt of defendant's guilt before unit- ing in a verdict of guilty, since such instruction would be misleading. 29 An instruction : ' ' You cannot convict the defendant un- less each of you is entirely satisfied from the evidence before you that defendant is guilty beyond all reasonable doubt. In determining the question, it is the duty of each juror to decide the matter for himself, and not to compromise or sacrifice his views or opinions of the case in deference to the views or opinions of others," — is properly refused, as a the conclusion of guilt, before a con- viction can be had. Each juror must be satisfied beyond a reasonable doubt of the defendant's guilt be- fore he can, under his oath, consent to a verdict of guilty. Each juror should feel the responsibility resting upon him as a member of the body, and should realize that his own mind must be convinced beyond a reason- able doubt of the defendant's guilt before he can consent to a verdict of guilty. If any one of the jury, after having duly considered all of the evidence, and after having con- sulted with his fellow jurymen, en- tertain such reasonable doubt, the jury cannot, in such case, find the defendant guilty," — was held prop- erly refused as inaccurate and mis- leading; and an instruction "that if, from all the evidence in the case, you each believe, as jurors, beyond a, reasonable doubt, that the defend- ant committed the acts of which she is accused, in manner and form as charged in the indictment," suffi- ciently advised the jury as to their individual responsibility, and that each of them must be so convinced before he could consent to a verdict of conviction. 28 — State v. Hamilton, 57 Iowa 596. The refusal of an instruction to the same effect was held proper in State v. Penney, 113 Iowa 691; State v. Ery, 67 Iowa 475; State v. Williams, 13 Wash. 335," 43 Pac. 15; State v. Robinson, 12 Wash. 491, 41 Pac. 884. 29— Davis v. State, 63 Ohio St. 173. Contra, McGuire v. State, 2 Ohio Cir. Dec. 318. § 315] Instbuctions on Reasonable Doubt. 685 juror should not be entreated not to sacrifice his individual opinion. To allow such an entreaty to prevail would be to deprive litigants of the average common sense and judg- ment of "twelve good men and true." 30 § 315. Statements that jurors must not disbelieve as jurors what they would believe as men. An instruction containing the statement that the jurors are not to disbelieve as jurors what they believe as men has been approved in some cases, 31 and it has been held proper to instruct that "you are not at liberty to disbelieve as jurors if, from all the evidence, you believe as men. Your oath imposes on you no obligation to doubt, when no doubt would exist if no oath had been administered;" 32 or that "you should be convinced as jurors where you would be convinced as citizens, and you should doubt as jurors only where you would doubt as men," where this sentence is used in connection with the evidence, and when the jury are instructed that they should be convinced from the evi- dence. 33 An instruction that, "A reasonable doubt in the jury box is exactly the same kind of reasonable doubt that an hon- est man meets up with in human life, ' ' is proper, 34 and it is not improper to instruct that the oath of the jurymen im- pose^ no obligation to doubt where no doubt exists. 35 So, the following instruction on this head has also been ap- proved : ' ' Jurors are not artificial beings, governed by arti- ficial or fine-spun rules; but they should bring to the con- 30 — People v. Rodley, 131 Cal. 240, not objectionable. People v. Zajicek, 63 Pae. 351. ■ 233 111. 198. 31 — Spies v. People, 122 111. 1, 3 32 — Leisenberg v. State, 60 Neb. Am. St. Rep. 320; Nevling v. Com., 628; Bartley v. State, 53 Neb. 310; 98 Pa. St. 322. See also, State v. Carrall v. State, 53 Neb. 431. Tyler, 122 Iowa 125, where this 33 — McMeen v. Com., 114 Pa. St. instruction was inferentially ap- 300. See also, Com. v. Harman, 4 proved. Pa. St. 269; State v. Dickey, 48 W. The expression, "you are not at Va. 325. liberty to disbelieve as jurors if from 34 — State v. Pitt, 166 N. C. 268. the evidence you believe as men, ' ' is 35 — People v. Zajicek, 233 111. 198. 686 Instructions to Jueies. [§ 315 sideration of the evidence before them their every-day com- mon sense and judgment, as reasonable men ; and those just and reasonable inferences and deductions which you, as men, would ordinarily draw, from facts and circumstances proven in the case, you should draw and act on as jurors. ' ' 3e Such instructions have been disapproved in other cases, when given without explanation, on the ground that the charge might mislead the jury. 37 In one case, the giving of such an instruction was held to have a dangerous tendency, but it was expressly announced that the error would not warrant reversal, if the guilt of the prisoner had been fully and undeniably established. 38 The statement first referred to is an extract from an opinion in an early Pennsylvania case, 39 and the idea sought to be conveyed is that a juror is not an artificial being, whose judgment is to be governed by artificial and technical rules, but that he is a man, and should, while acting as a juror, act as a man, exercising his reason, intelligence, every- day judgment and common sense. In this sense, the propo- sition that if one believes as a man, he should also believe as a juror, is correct. 40 § 316. Statements that it is better that guilty escape than that innocent be punished. In a number of cases the court has been requested to charge the jury that it is better for a specified number of guilty persons to escape than for one innocent person to be punished, and, without any exception, such an instruction has always been refused. 41 These decisions unite in declar- 36 — State v. Elsham, 70 Iowa 531. • 40 — State v. Collins, 20 Iowa 85. 37— State v. Hassan, 149 Iowa 518; 41— Alabama. Garden v. State, 84 State v. Buby, 61 Iowa 86; State Ala - il7 > Garliek v - state > 79 Ala - v. Pratt, 20 Iowa 267; State v. Col- S65 J Ward v. State, 78 Ala. 441. ' „_ California. People v. Ebanks, 117 hns. 20 Iowa 85. _ , „__ .. _ ' . „„„ '_, ' Cal. 652, 40 L. E. .A. 269n, 49 Pae. 38— State v. Collins, 20 Iowa 85, ee also, State v. Pratt, 20 Iowa 267, 39 — Gibson, C. J., in Com. v. Har- man, 4 Pa. St. 269. 444, 50 Am. Eep. 617 1049. See also, State v. Pratt, 20 Iowa 267. Illinois. Seacord v. People, < 121 39— Gibson, C. J., in Com. v. Har- 111. 623; Adams v. People, 109 111. § 317] Instbuctions on Beasonablb Doubt. 687 ing that there is no such rule or policy known to the law. As was well said in one case : " It is not within the purpose of the law that any guilty person should escape, or any inno- cent one he convicted. " 42 At most, the proposition is noth- ing more than a maxim, and probably as fallacious as the common run of maxims are. 43 So, a refusal to charge that "the jury have a right to consider that innocent men have been convicted, and to consider the danger of convicting an innocent man in weighing the evidence to determine whether there is reasonable doubt as to defendant's guilt," is proper. 44 § 317. Applying doctrine to degrees of crime. ' ' In the trial of a criminal case, the defendant is entitled to the benefit of any reasonable doubt in the mind of the jury in regard to any * * * grade or degree of the of- fense charged in the indictment. * * * 'And where there is a reasonable doubt of the degree of the offense which the defendant has committed, he shall only be con- victed of the lower degree,' " 45 It has therefore been held proper to charge, in a murder case, that "if the ju*y believe from all the evidence in the case, beyond a reasonable doubt, that the defendants are guilty of murder in the first Indiana. Coleman v. State, 111 good. Fortunately, and to the credit Ind. 563. of humanity, it is hardly required Missouri. State v. Tettaton, 159 as a shield' against injustice or prej- Mo. 354. udice, for a sense of justice and fair Montana. Territory v. Burgess, 8 play is almost instinctive in the Mont. 57, 1 L. B. A. 808, 19 Pae. 558. mind of man; and experience has 42 — Adams v. People, 109 111. 444, shown that juries are much more in- 50 Am. Bep. 617. clined to show mercy towards the 43 — ' ' The well-known and well- guilty than to punish the innocent. ' ' worn maxim is doubtless creditable Territory v. Burgess, 8 Mont. 57. to humanity, but we are not aware 44 — People v. Machado (Cal.), 63 that it has been adopted by courts Pac. 66. i as a legal proposition to be ineor- 45 — Arnett v. Commonwealth, 137 porated in a charge to a jury in a Ky. 270; Payne v. Com., 1 Mete, criminal trial. Like most other (Ky.) 370; White v. State, 23 Tex. maxims, it has a true as well as a App. 154. See also, State v. Het- false side, and may be tortured and land, 141 Iowa 524, 18 Ann. Cas. 899 construed to work harm as well as 688 Instructions to Jueies. [§ 317 degree or second degree, * * * hut have a doubt as to the degree of offense of which the defendants are guilty, the jury will give them the benefit of such doubt, and find them guilty of the less offense. " 46 So it has been held that ' ' an instruction that, if the jury believe, from the evidence, beyond a reasonable doubt, that the defendant is not guilty of murder in the first degree, but that the elements of mur- der in the second degree, stated therein to the jury, existed, then they should find him guilty of murder in the second degree, must be construed as applying the 'reasonable doubt' to both degrees of murder, and cannot be prejudicial, if the jury is subsequently instructed that they should not find the defendant guilty of murder if they entertain a rea- sonable doubt as to whether he was guilty of murder in either the first or second degree, and the conviction is of murder in the first degree. " 47 " If , on a trial for murder, the fact of the killing is admitted, and the defense rests on the question of the grade of the offense, or whether the de- fendant was justified iii killing on the ground of self-defense, instructions on his behalf on the question of reasonable doubt, framed so broad as to include the fact of killing * * * should be refused." 48 Instructions in such a case should apply only to the grade of the offense and the fact of justification. 49 In one state it has been held that the law should be charged, not only upon the general question, but also as between the different degrees of culpable homi- cide. 50 § 318. Instructions held bad as requiring too high a degree of proof to overcome a reasonable doubt. In the preceding sections, it will be noted that the in- structions criticised as erroneous frequently require too 46 — State v. Anderson, 86 Mo. 309. 49— People v. Williams, 32 Cal. See also, Clark v. Com. (Ky.), 63 280. S. W. 740. 50— Blake v. State, 3 Tex. App. 47 — People v. Chun Heong, 86 Cal. 581; Murray v. State, 1 Tex. App. 329, 24 Pae. 1021. 417. 48 — People v. Williams, 32 Cal. 280. § 318] Instructions on Reasonable Doubt. 689 high a degree of proof to overcome a reasonable doubt. 51 A number of miscellaneous instructions subject to this vice particularly will be found in this section. It is improper to require a finding of not guilty unless the evidence generates full belief in guilt of the accused equivalent to certainty, 52 or to instruct: That there must be a "certainty" of defendant's guilt. 53 "That the jury must be convinced * * * to an absolute moral cer- tainty in order to convict. ' ' 54 That the jury must acquit ' ' unless the evidence * * * is sufficiently strong to re- move every supposition or hypothesis but that of his [de- fendant's] guilt," 55 or so strong "as to exclude to a moral certainty every supposition or hypothesis but that of guilt." 56 That "evidence to induce or authorize a convic- tion should not be a mere preponderance of probabilities, but should be so strong and convincing as to lead the mind to the careful and guarded conclusion that the -defendant cannot, consistently with any reasonable hypothesis, be in- nocent." 57 That the jury should acquit if they could "in- fer any reasonable theory or hypothesis of the defendant's innocence, * * * although there may be stronger probabilities of his guilt than of his innocence." 58 So, an instruction requiring "clear and distinct proof" of guilt has been held to require a higher degree of proof than is necessary to convince "beyond a reasonable doubt." 59 A charge which requests an acquittal, if there is any doubt of the defendant's guilt which is not purely specu- lative doubt, requires a higher degree of proof and con- viction of the mind of the defendant's guilt than~the law 51— See §§ 314-317, ante. 55— Simmons v. State, 129 Ala. 41; 52 — Muekerman v. People, 213 111. Blackburn v. State, 86 Ala. 598. But 114. see, People v. Smith, 162 N. T. 520, 53— State v. Powers, 59 S. C. 200, rev'g 37 App. Div. 280. holding that the word "certainty" 56— Harvey v. State, 125 Ala. 47. should have been modified by the 57 — Bodine v. State, 129 Ala. 106. words "reasonable and moral." 58 — State v. Tettaton, 159 Mo. 54— People v. Hecker, 109 Gal. 451, 354. 30 L. E. A. 403, 42 Pac. 307. 59— Griffith v. State, 90 Ala. 583. Blashfield Vol. 1—44 690 Instructions to JubiesI [§ 318 requires. 60 It is error to instruct that "the proof must do more than reasonably satisfy the jury of the guilt of the defendant, — it must go to the extent of satisfying the jury of his 'guilt beyond all reasonable doubt or supposition of innocence. " 61 That ' ' if the testimony is so conflicting that, after weighing it all, the jury is still in doubt as to whether the defendant did or did not commit the offense, they must acquit," because of the omission of the word "reasonable," as expressive of the doubt requiring an acquittal. 62 It is also error to instruct: "If the state of the case is such that, after an entire comparison, consideration, weigh- ing, and sifting of all the eyidence, it leaves the mind£ of the jury in that condition that they cannot say they have an abiding and absolute belief of the guilt of the defendants, they ought to find them not guilty." 63 That "the jury ought to acquit the defendant if, after a rational sifting and weighing of the whole evidence in this case, they are not individually certain that he is guilty," and "the jury are the sole determiners of the questions of fact; and if, ac- cording to the evidence against the defendant, he would be guilty, but, according to the evidence in his favor, he would be innocent, and the jury cannot tell where the truth in- dubitably lies, this would furnish a just ground for a rea- sonable doubt, and the defendant ought to be acquitted," as, under such instructions, "any possible, speculative, or imaginary doubt would have been sufficient to prevent a conviction." 64 That "the only just foundation for a ver- dict of guilty in this case is that the entire jury shall fully and perfectly believe that the defendant is guilty as charged in this indictment, to the exclusion of every rea- sonable doubt of his guilt; and if the state has failed to furnish this full measure of proof, and to impress the minds of the jury with such full and perfect belief of the defend- ant's guilt, the jury ought to find him not guilty," as lead- 60— Perry v. State, 91 Ala. 83. 63— Whatley v. State, 91 Ala. 108. 61 — Brown v. State, 128 Ala. 12. 64 — Boss v. State, 92 Ala. 76. 62— McClellah v. State, 117 Ala. 140. § 319] Instructions on Reasonable Doubt. 691 ing the jury to require "a higher measure of proof of guilt than the law exacts, in that it requires that the jury shall fully and perfectly believe the defendant guilty, to the exclusion of every reasonable doubt of his guilt; and that, if the prosecution has failed to furnish this full meas- ure of proof, and to impress the minds of the jury with such full and perfect belief of his guilt, he should be ac- quitted. ' ' An instruction "that the only just foundation for a ver- dict of guilty in this case is that the entire jury shall fully and perfectly believe that the defendant is guilty as charged in this indictment, to the exclusion of every reason- able doubt of his guilt, ' ' is misleading where the indictment contains three counts charging the commission of the offense in a different manner, and only expressly charging the high- est grade of the offense. 65 § 319. Instructions held bad as requiring too high a degree of proof of innocence. An instruction which says that if the jury believe "from the evidence", all the facts material to defendant's guilt, instead of requiring the jury to believe such things beyond a reasonable doubt, is erroneous. 66 So it is reversible error to instruct that a reasonable doubt "is doubt engendered by the investigation of the whole proof, and an inability, after such investigation, to let the mind rest easily upon the cer- tainty of guilt or innocence, ' ' since such instructibn requires defendant to prove his innocence. 67 It is also error to instruct: That to entitle the defendant to an acquittal, the jury must be satisfied that the felonious intent did not exist. 68 That if the jury thought that defend- ant did not commit the crime alleged, they should give him the benefit of the doubt. 69 That "all that is required to enable a jury to return a verdict is, after a comparison and 65 — Lundy v. State, 91 Ala. 100. 68— Best v. State, 155 Ind. 46. 66— Arnold v. Com., 21 Ky. L. Eep. 69— State v. Raymond, 53 N. J. L. .1566. 260. 67— State v. Moss, 106 Tenn. 359. 692 Instructions to Jueies. [§319 consideration of all the testimony, to believe conscientiously that it establishes the guilt of defendant." 70 That "can the facts and circumstances you find from the evidence to be true exist, and can you, in view of these facts and circum- stances, reasonably conclude that the defendant is inno- cent? If so, you should find him not guilty; otherwise you should find him guilty." 71 "That a preponderance of evi- dence is necessary in order to raise a reasonable doubt of defendant's guilt." 72 That, "if you have a reasonable doubt that the animal slaughtered by defendant was not the property of [the prosecutor], you will find the defendant not guilty, ' ' since such instruction requires the jury to be- lieve the innocence of defendant beyond a reasonable doubt. 73 That, ' ' if you believe from the testimony, beyond a reasona- ble doubt, that the defendant did not take the property fraudulently, but took the property under an honest claim of right, he would not be guilty of theft, and you should acquit him." 74 § 320. Sufficiency of instructions taken as a whole. It has already been noted in a previous chapter that if instructions are correct as a whole, minor errors therein will be cured, 76 and this rule applies to instructions as to reason- able doubt. 76 Where a paragraph of a charge-fully and explicitly stated the degree of proof required to convict, and the following paragraphs failed to instruct that the jury find beyond a 70— Ellerbe v. State, 79 Miss. 10. 74 — Lewis v. State, 29 Tex. App. 71 — McMillan v. State, 7 Tex. App. 105. 142, in which it was said that the 75 — See § 197, ante. jury need never conclude, reasonably 76 — Where the instructions, taken or otherwise, that the defendant is as a whole, clearly present the law innocent, but only that the evidence to the jury, minor errors in one in- fails to establish his guilt. struetion will not be ground for re- 72 — People v. Elliott, 80 Cal. 296, versal. People v. Oppenheimer, 156 22 Pae. 207; State v. Porter, 64 Iowa Cal. 733, 106 Pac. 74; Smith v. State, 237. 7 Ga. App. 555; People v. Kreidler, 73— Landers v. State (Tex. Cr. 180 Mich. 654; Bartley v. State, 53 App.), 63 S. W. 557. Neb. 310. § 320] Instructions on Seasonable Doubt. 693 reasonable doubt, it was held that, taking the instructions together, no doubt could have existed in the minds of the jury that their finding must be beyond a reasonable doubt. 77 Where the court, after correctly instructing the jury on the subject of reasonable doubt, said : ' ' But mere probabili- ties of innocence or doubts, however reasonable, which beset some minds on all occasions, should not prevent a verdict" of guilty, it was held that this could not have misled the jury, though the latter instruction was somewhat ambig- uous. 78 Even the fact that the court erroneously charged that defendant must make out his defense by a preponder- ance of the evidence has been held not reversible error, where the court also charged that the jury must give the defendant the benefit of every reasonable doubt. 79 Where the instructions as a whole clearly and fully state the law, and properly define reasonable doubt} a portion of a charge stating that the jury should acquit "if you con- scientiously believe on your oaths, under the evidence and the law that the defendant is not guilty, " cannot be objected to. 80 And where the whole of the' charge as to reasonable doubt contains a sufficiently accurate statement of the law upon that subject, a statement that "mere possible doubts, however reasonable, which beset some minds on all occa- sions, should not prevent a verdict of guilty, ' ' though to be condemned as being meaningless and tending to confusion, will not constitute prejudicial error. 81 An instruction that, in order to find the defendant guilty of negligent homicide, the jury must believe, beyond a rea- sonable doubt, the facts, on which this defense is based, is not error, where the court elsewhere gave a charge on rea- 77— Steiner v. People, 187 111. 244; 79— State v. Ta/lor, 57 S. C. 483, State v. Rainsbarger, 79 Iowa 745. 76 Am. St. Rep. 575. 78— People v. Lee Sare Bo, 72 Gal. 80— State v. Shea, 78 Wash. 342, 623, 14 Pao. 315. See also, People 139 Pac. 203. v. Kernaghan, 72 Cal. 609, 14 Pae. 81— People v. Chun Heong, 86 Cal. 566. 329, 24 Pae. 1021. 694 Instructions to Juries. [§ 320 sonable doubt in connection with negligent homicide. 82 So, an instruction as to the degrees of the offense of homicide, and stating that should the jury entertain a reasonable doubt as to which of the grades of crime named the defendant may be guilty, or if any, they will give him the benefit of such doubt, and acquit him of the higher offense, and find him guilty of the lower offense only, is not prejudicially errone- ous, as assuming that they cannot find him not guilty, where it appears from the general tenor of the charge, and from the instruction as to the form of the verdict, that the jury were expressly told that they could bring in a verdict of acquittal. 83 An instruction requiring "the jury to find the issues' on the evidence introduced by the state" will not be ground for reversal where the remaining instructions require the jury to find defendant guilty upon the evidence beyond a reason- able doubt, and to acquit if, on the whole evidence, they have a reasonable doubt of his guilt. 84 Where the court charges that "it devolves upon the prose- cution to establish the guilt of the defendant to your satis- faction, beyond a reasonable doubt, before you are author- ized to find a verdict against him," and that "all persons charged with a criminal offense are presumed to be innocent until the jury are satisfied beyond a reasonable doubt of their guilt, ' ' and that, ' ' if you have a reasonable doubt as to the guilt or innocence of the defendant, you should give him the benefit of the doubt, and acquit him," and repeats the words ' ' beyond a reasonable doubt ' ' some fifteen times, an instruction that, "if you are satisfied that the defendant is guilty of the offense charged, and that he committed it in the nighttime, — that is, between sunset of- one day and sun- rise of the next, — you should find him guilty of burglary in the first degree," is not erroneous on the ground that it 82— Spears v. State, 41 Tex. Cr. 84— State v. Jackson, 99 Mo. 60. App. 527. 83— People v. Ah Gee Yung, 86 Cal. 144, 24 Pae. 860. § 321] Instructions on Reasonable Doubt. 695 omits the words "beyond a reasonable doubt," and leaves the jury to be simply "satisfied" of the defendant's guilt, no matter whether they entertained a reasonable doubt of his guilt or not. 85 So, where the instructions repeatedly stated that the defendant must be acquitted if the jury had a reasonable doubt as to his guilt, or of a single fact necessary to establish his guilt, it was not reversible error to charge that the jury must be "satisfied" of the truth of a certain fact presented in defense. 86 The omission of the word ' ' doubt " in a charge is not error warranting reversal, as it will be presumed that a jury of ordinary intelligence will supply' the word. 87 An erroneous instruction as to reasonable doubt is not cured by the giving of another instruction, when it is impos- sible to say which the jury followed. 88 § 321. Reasonable doubt in civil cases. While there are a few civil cases holding that, where the proof of a crime is involved in a civil action, its existence must be proved beyond a reasonable doubt, the great major- ity of courts refuse to recognize any difference between this and any other class of civil actions ; and, as has already been noted, a charge as to the doctrine of reasonable doubt is usually considered erroneous as imposing too high a degree of proof. 89 Such instructions should not be given and may be properly refused. 90 An instruction that "fraud is never presumed, but the burden rests upon one charging fraud to make it out by clear and convincing evidence, ' ' is not objectionable as conveying an impression that fraud must be proved beyond a reason- able doubt. 91 85— People v. Flynn, 73 Cal. 511, 88— People v. Lee, 248 111. 64. 15 Pao. 102. See also, Steiner v. 89 — See § 283, ante. People, 187 111. 244. 90— Seymour v. Bailey, 76 Ga. 338; 86— People v. Flannelly, 128 Gal. Beeves v. Graffling, 67 Ga. 514. 83, 60 Pao. 670. 91— Stevens v. Stevens, 127 Ind. 87 — Cromwell v. State, 59 Tex. Cr. 560; Wallace v. Mattiee, 118 Ind. 59. App. 525. CHAPTER XXVIII. Instructions as to Defense of Alibi. " § 322. Necessity of propriety of instructions as to defense of alibi. § 323. Sufficiency of instructions. § 324. Propriety and sufficiency of instructions where burden of proof is not on defendant to establish alibi. § 325. Instructions where burden of proof is on defendant to establish alibi. § 326. Doctrine of reasonable doubt as applicable to defense of alibi. § 327. Instructions requiring defense of alibi to be viewed with caution. § 328. Instructions as to the effect of an unsuccessful attempt to prove alibi. § 322. Necessity or propriety of instructions as to defense of alibi. It is the duty of the trial court to instruct on the law of alibi, and error to refuse such an instruction, when there is substantial evidence in support of the defense, 1 or when the only defense is that of alibi, and the proof tends clearly to establish such defense, 2 if not equivalent instruction on the- subject is given. 3 Accordingly, where there is direct and positive evidence of an alibi, the court may instruct the 1— Florida. Knight v. State, 60 App. 401, 25 Am. St. Eep. 730; Long Fla. 19; Long v. State, 42 Fla. 509. v. State, 11 Tex. App. 381; Padron Iowa. State v. Porter, 74 Iowa v. State, 41 Tex. Cr. App. 548; Eoun- 623. tree v. State (Tex. Cr. App.), 55 S. Kansas. State v. Conway, 55 Kan. W. 827; Lee v. State, 34 Tex. Cr. 323, 40 Pac. 661. . App. 519. Missouri. State v. Kelly, 16 Mo. 2 — Courtney v. State, 10 Okla. Cr. App. 213. 589, 140 Pac. 163. Oklahoma. Courtney v. State, 10 3 — Where the evidence raises an Okla. Cr. 589, 140 Pac. 163. issue as to alibi, the refusal of an Tennessee. Wiley v. State, 5 Baxt. instruction thereto is error when no 662. equivalent instruction is given in Texas. Jones v. State, 30 Tex. the charge. Burns v. State, 75 Ohio App. 345; Quintana v. State, 29 Tex. St. 407. ( 696 ) § 322] Insteuctioks as to Defense of Alibi. 097 jury to consider such evidence in connection with other evidence given on other points of the case, showing the physical impossibility of the defense of alibi being true. 4 There is however, some conflict of authority as to the ne- cessity of requesting instructions as to this defense. In one state it is said that the court should instruct the jury on the subject of alibi, where this is the sole defense; B and in a case where alibi is the only defense interposed, the omission of the court to instruct on alibi, exception being taken in the motion for new trial, is cause for reversal; 6 and that, when the defendant relies upon the evidence going to prove an alibi, the trial court should usually charge upon that theory. 7 But in one case where no charge on alibi was requested, a charge as to the presumption of innocence was held sufficient. 8 Apparently the rule seems to be settled that an omission to charge with reference to an alibi is not reversible error unless the charge be excepted to because of such omission, or unless specific instructions on that sub- ject are requested and refused. 9 But if exceptions are duly saved to the court's omission to instruct on this subject, or a special request for such an instruction is made and refused, this will be ground for reversal. 10 In another state it has been held that, where the question of personal identity and the fact of alibi in a criminal case are virtually the same defense, the omission of the court to instruct separately on alibi is not error, 11 and in this state it has been 4 — State v. Standley, 76 Iowa 215. 9 — Quintana v. State, 29 Tex. App. 5— Ninnon v. State, 17 Tex. App. 401, 25 Am. St. Eep. 730; Ayres v. 650; Deggs v. State, 7 Tex. App. State, 21 Tex. App. 399; Clark 359. v. State, 18 Tex. App. 468; McAfee 6 — Arismendis v. State (Tex. Cr. v. State, 17 Tex. App. 131; Ander- App.), 60 S. W. 47. son v. State, 34 Tex. Cr. App. 546, 7 — Quintana v. State, 29 Tex. App. 53 Am. St. Eep. 722. 401, 25 Am. St. Eep. 730; McGrew v. 10— Bennett v. State (Tex. App.), State, 10 Tex. App. 539. 15 S. W. 405; Eountree v. State See also, Wheeler v. State, 56 Tex. (Tex. Cr. App.), 55 S. W. 827; Con- Cr. App. 547. way v. State, 33 Tex. Cr. App. 327. 8 — Brown v. State, 72 Tex. Cr. 11 — Dale v. State, 88 Ga. 552. App. . 33. 698 • Instructions to Juries. [§ 322 held that, where the evidence is mainly circumstantial, and there is evidence tending to show that at the time of the commission of the crime defendant was absent a distance of three-quarters of a mile, and asleep, it was reversible error not to instruct fully on the issue of alibi, and an exam- ination of this case discloses that no request for such an instruction was made. 12 In a number of jurisdictions, a failure of the court to instruct as to this defense of its own motion cannot be assigned as error. The defendant must ask a special charge on the subject. 13 In the absence of evidence warranting it, no instruction on the defense of alibi should be given. 14 Accordingly, where there is no testimony, in a prosecution for murder, as to the whereabouts of defendant for about thirty minutes before the commission of the crime, and for about fifteen minutes after i;ts commission, and defendant was in the vi- cinity of the crime, a failure to instruct on alibi is not error, in the absence of any request for such an instruction, 13 and an instruction in a prosecution for murder, may properly be refused where the testimony in support of the defense is vague and inconclusive, and such testimony is not supported by any evidence that the witness knew when the deceased was killed. 16 Where one is jointly prosecuted with others, on the theory that they all conspired together to commit the crime, and this theory is supported by evidence, it is proper to refuse to direct the jury to acquit him if they should find 12 — Fletcher v. State, 85 Ga. 666. v. Murray, 91 Mo. 95. There is no Compare Boothe v. State, 4 Tex. necessity for an instruction as to App. 202. the defense of alibi, where there 13 — State v. Peterson, 38 Kan. 205, was no suggestion from any of the 16 Pac. 263; Com. v. Boschino, 176 witnesses that defendant was absent Pa. St. 103; Goldsby v. United at the time of the alleged assault. States, 160 U. S. 70, 40 L. Ed. 343. Johnson v. State (Tex. Cr. App.), 58 See also, State v. Sutton, 76 Iowa S. W. ' 105. See also, Benavides v. 268; Courtney v. State, 10 Okla Cr. State (Tex. Cr. App.), 61 S. W. 125. 589, 140, Pac. 163. 15— State v. Seymour, 94 Iowa 14— Burger v. State, 83 Ala. 36; 699. State v. Seymour, 94 Iowa 699; 16 — State v. Murray, 91 Mo. 95. State v. Jackson, 95 Mo. 623; State §323] Instructions as ( to Defense of Alibi. 699 that he was not actually present participating in the crime. Of course it is not true that a co-conspirator must be acquitted because he establishes an alibi, though it is equally true that, if the evidence tends to show that there was no conspiracy, and that the alleged co-conspirator was not pres- ent at the commission of the crime, an instruction on the defense of alibi would be proper. 17 § 323. Sufficiency of instructions. In determining the sufficiency of instructions on this sub- ject they must be considered as a whole, 18 and an instruc- tion that, if the jury entertain a reasonable belief that, at the time deceased was killed, the accused was at his own home, and not at the place of the killing, they should acquit, is not a sufficient charge per se on the subject of alibi, but, when followed by a sufficient charge on the doctrine of rea- sonable doubt, the entire context will be a sufficient charge on the subject of alibi. 19 An instruction that evidence of alibi should cover the entire time of the transaction is proper. 20 Where, at the preliminary examination, the accused per- mits testimony of a false alibi, and also allows his counsel, before the state has opened its case, to introduce evidence of such alibi, the judge may say that the people claim that the defendant intends to set up an alibi. 21 It has been held proper to instruct that "the defense of an alibi is a legitimate defense, and is in fact, when thoroughly proved, the most logical defense that can be possibly intro- duced," 22 and error to refuse an instruction that "the de- fense of an alibi, as it is called, is as legitimate a defense as any other defense. You are to give the same credit to wit- 17— State v. Johnson, 40 Kan. 266, 20— People v. Probst, 237 111. 390. 19 Pae. 749. 21— People v. Connor, 56 Hun (N. 18— Forte v. People, 57 Colo. 450, Y.) 644. 140 Pae. 789. 22— People v. Burns, 59 Cal. 359. 19— Boothe v. State, 4 Tex. App. 202. 700 Instbtjctions to Jubies. [§ 323 nesses who testify concerning it as to those who testify to anything else." 23 Error cannot be>predicated of a charge that ' ' to make an alibi available as a defense within itself, it must be so strong as to preclude the idea of the party's being at the place where the crime was committed at the time the crime was committed. ' ' 24 An instruction: "An alibi is a defense which is estab- lished by showing that the person charged with the crime was at some place other than that where the crime was com- mitted, at such time that he could not have been at the place of the crime at the time of its commission. If the evidence offered to establish an alibi fails to show the accused at the place claimed at such a time that he could not have been where the crime was committed at the time of its commis- sion, the alibi fails. In other words, if the accused might have been at the place he claims at the time shown, and yet might have been at the place of the crime at the time of its commission, there is no alibi,"— is a correct statement of law as to what constitutes an alibi. 25 Where one is indicted as a principal offender for a mur- derous assault, an instruction "that all persons are princi- pals who are guilty of acting together in the commission of an offense," and that, if the jury believe that others than defendant assaulted the prosecuting witness, "then you must not convict this defendant for their act, unless you are satisfied that defendant was present, and, knowing their un- lawful intent, aided them by his acts in committing such assault ; and if, upon this issue, you have a reasonable doubt, then you should give him the benefit of the doubt, and acquit him, ' ' sufficiently presents the issue of alibi. 26 An instruction that "one defense in this case is what is known in law as an 'alibi,' — that is, that the defendants 23 — People v. Hare, 57 Mich. 505. 26— Benavides v. State (Tex. Or. 24r— Simpson v. State, 78 Ga. 91. App.) 61 S. W. 125. 25— State v. Powers, 72 Vt. 168. § 323] Instructions as to Defense of Alibi. 701 were not present at the time and place of the commission of the offense charged in the indictment, if any such offense has been committed, but that they were at that time at an- other and different place," — is not erroneous on the ground that it classes alibi as a defense. Though it is true that, in order to convict the defendants, it devolves upon the state to prove their presence at the time and place of the commis- sion of the offense, yet, in order to overcome the case made out by the state against them, they assume the burden of showing such a state of facts as will raise in the minds of the jury a reasonable doubt as to their presence at the time and place of the commission of the offense, and to this extent an alibi is a defense. 27 The jury may be instructed ' ' that the state must establish the guilt of the respondent beyond a reasonable doubt to entitle it to a conviction, and that, if the evidence in support of the alibi, in connection with the other evidence, raised in their minds a reasonable doubt as to his guilt, he was en- titled to an acquittal. * * * It is proper to thus submit the question of the alibi, instead of treating it as an inde- pendent issue. ' ' 28 An instruction ''that if, after considering all the facts and circumstances in proof, they [the jury] had no reasonable doubt of the presence of plaintiffs in error at the house of K. at the time of the assault, then the defense of alibi had not been made out, and was unavailing," has been held proper, and not in conflict with the rule as to reasonable doubt. 29 "Where the evidence tends to prove an alibi, the use of the words 'possible' and 'impossible,' as applied to the abil- ity of the defendant to have been at a certain place, other than where the crime was committed, and at the place where the crime was committed at the time of its commission, is erroneous. ' ' 30 27— State v. Hale, 156 Mo. 102. 29— Aneals v. People, 134 111. 401. 28— State v. Powers, 72 Vt. 168. 30— Snell v. State, 50 Ind. 516. 702 Instructions to Jtjeies. [§ 323 In a prosecution for theft of cattle, it is error, in a charge in reference to alibi, to require the absence of the accused, not only from the place of the original taking, but from the possession of the cattle while being driven from the place of taking. 31 An instruction that, "if the evidence of an alibi has intro- duced in the minds of the jury a doubt as to whether or not the defendant was at or about the place when the alleged robbery is said to have been committed, you will acquit the defendant, ' ' is properly refused, since the doubt justifying the acquittal must be a reasonable one. 32 § 324. Propriety and sufficiency of instructions where bur- den of proof is not on defendant to establish alibi. By the weight of authority the burden of proving an alibi is not imposed on defendant, it being considered that the doctrine of reasonable doubt prevents the imposition of such burden, 33 and instructions assuming that an alibi is a special defense, the proof of which by a preponderance of the evi- dence upon that issue is a burden resting on the defendant, are erroneous. 34 Accordingly, it is error to instruct that the burden of 31 — Thompson v. State, 42 Tex. 17 N. D. 13; State v. Hazlett, 16 N. Cr. App. 140. D. 426. 32 — Gibbs v. State, 1 Tex. App. Ohio. Walters v. State, 39 Ohio 12. St. 215. 33— Indiana. French v. State, 12 • Oklahoma. Thompson v. State, 6 Ind. 670, 74 Am. Dee. 229. 0kla Cr - 50 - 117 Pac. 216. Michigan. People v. Pearsall, 50 0re S° n - State v. Chee Gong, 16 . 2 ° 3 e Ore. 534, 19 Pae. 607. ™' '• Qi 4. uriii., isr Texas. Gallaher v. State, 28 Tex. Missouri. State v. Miller, 15b o^t, „,,„.,_ , 1D ,, ,„„ A PP- 247; Johnson v. State, 21 Tex. Mo. 76; Toler v. State, 118 Mo. 17ft; " g6g ' ' ' State v. Howell, 100 Mo. 628; State ^ participation of the defend . v. Jennings, 81 Mo. 185, 51 Am. Eep. ant in the crime committed must be 236. proved by the state beyond a rea- North Carolina. State v. Starnes, sonable doubt. Thompson v. State, 94 N. C. 973; State v. Josey, 64 N. 6 Okla Cr. 50, 117 Pae. 216. C. 56. 34— People v. Hoosier, 24 Cal. North Dakota. State v. Nelson, App. 746, 142 Pae. 514. § 324] Instbuctions as to Defense op Alibi. 703 proof is on the defendant to make out the defense of an alibi; 33 that testimony adduced to prove an alibi should not be considered unless it has established the alibi by a pre- ponderance of evidence; S6 that evidence of alibi must "be of a strong convincing character and exclude any reasonable hypothesis except the nonpresence of the accused;" 37 or that an alibi must be proved by evidence which outweighs that given for the state. 38 Such instructions seem plainly inconsistent with the rule that the jury must give the defendant the benefit of every reasonable doubt. 39 An instruction that defendant "may establish any fact essential to his- defense by merely a preponderance of evi- dence" is not a good form, as in some cases it may lead the jury to infer that no evidence on the part of the defendant of a fact would be sufficient to raise a reasonable doubt of his guilt, unless he actually proved the fact by a preponder- ance of evidence. But such an instruction will not work a reversal if the only harmful effect it could have is in relation to the defense of alibi, and the court charges that, "where evidence has been offered by the defendant for the purpose of proving an alibi, — that is to say, that the defendant was in another place at the time of the alleged act of murder, and was distant from the scene of the killing charged, at the time, and therefore could not have participated in it; if, from the whole case, and a consideration of all the testi- mony, the evidence in this behalf produced be sufficient to create a reasonable doubt as to whether the defendant was present at the time and place of the murder, — he should be acquitted. " 40 An instruction that an alibi is a good defense, if proved 35— State v. Chee Gong, 16 Ore. 38 — French v. State, 12 Ind. 670, 534, 19 Pae. 607. 74 Am. Dee. 229. , 36 — State v. Howell, 100 Mo. 628; 39 — Johnson v. State, 21 Tex. App. Walters v. State, 39 Ohio St. 215; 380. But see the following section. State v. Anderson, 59 S. C. 229. 40— People v. Tarm Poi, 86 Cal. 37— State v. Nelson, 17 N. D. 13. 225, 24 Pac. 998. 704 Instbuctions to Juries. • [§ 324 to the satisfaction of the jury, has been held proper, since it does not convey any intimation that the burden of proving it rests upon the defendant. 41 The fact that the court erroneously charges the jury that the defendant must prove his defense by a preponderance of the evidence is not error, where the jury are also in- structed that they must give the defendant the benefit of every reasonable doubt. 42 And an instruction that the defendant may establish any fact essential to his defense by a preponderance of evidence does not necessarily import that he must prove the alibi by a preponderance of evidence ; and any apparent error in such instruction is cured if the jury are explicitly charged that the defendant must be acquitted in case of a reasonable doubt as to his'presence at the time and place of the crime. 4:i So, in an instruction that, "if the jury believe and find from the evidence that the defendant was not present at the place and time the alleged rape is stated to have been com- mitted, by the prosecuting witness, but that the defendant, at the time of the alleged rape, was elsewhere, at another and different place than where the alleged rape is stated to have taken place, then you should acquit the [§ 333^ to decline going upon the stand, and that his refusal to testify can in no case be considered as evidence of his guilt or innocence;" 49 or to state: "That the fact that the de- fendant went voluntarily before the grand jury, and told his story, but has not taken^the witness stand here, should not raise any presumption against him," and that "the jury are not to assume that he would deny or admit any of the evidence, but that the jury must consider that evidence as it stands, unaffected by the fact that the defendant does not take the stand." 50 Also, a charge that "you must not discuss his failure to go upon the stand and testify, nor can you consider his failure to testify upon the witness stand for any purpose whatever," is correct, 51 and it is proper to charge that a failure to testify is "not even a circumstance against him [defendant], and no presump- tion of guilt can be indulged in by the jury on account of such failure on his part." 52 An objection to an instruction stating that "the law allows a defendant to testify in his own behalf, but a failure to do so is not even a circumstance against him, and no presumption of guilt can be indulged in by the jury on account of such failure on his part, and the jury will not mention, discuss or even refer to the fact that the defendant failed to testify," in that such charge does not in terms instruct that the jury cannot consider the defend- ant's failure to testify, is hypercritical. 53 An instruction that "you all know that the intent is a simple mental operation, and we cannot, unless the de- fendant himself speaks, — it is not possible to, — give any direct, positive proof of the intent of any person in the commission of any act. You cannot look into the human 49— May v. People, 8 Colo. 210, 6 52— Fulcher v. State, 28 Tex. App. Pac. 816. 465; O'Hara v. State, 57 Tex. Gr. 50 — People v. Fitzgerald, 20 App. App. 577. Div. (N. Y.) 139. 53— Singleton v. State, 57 Tex. Cr. 51— Herndon v. State, 50 Tex. Cr. App. 560. App. 552. § 333] Absence op Allowable Evidence. 733 mind and see what its workings are. The prosecution can never in any case, unless the defendant himself sees fit to speak, give any direct or positive evidence of the intent," — is not erroneous as announcing to the jury "that any presumption should be indulged against the defendant be- cause he did not give evidence as a witness in the cause. ' ' 54 It has also been held that where the court has charged that the jury were not to consider defendant's failure to testify as a circumstance against him, a refusal to further instruct that the jury were not to think of it was proper. 55 And where a charge of this nature has been given, it has been held not erroneous to charge, in addition, that the evidence of the state had not been contradicted. It was considered on appeal that the jury could not thereby have obtained the impression that they could consider the fact that the respondent had not testified as evidence against him. 56 On the other hand, where this charge has been given, it is erroneous to instruct the jury that the failure of a defendant to produce evidence which it was in his power to produce, to 1 meet the evidence adduced by the state, is a proper matter for them to consider. 57 Where there is no direct evidence to convict the accused of the crime charged, it is error to instruct that "his mere silence * * * would justify a strong inference that he could not deny the charge, and therefore would not go upon the stand." And the court says, further, that such an inference is natural and irresistible, and that no instruc- 54 — People v.. Morton, 72 Cal. 62, spondent 's omission to testify. Such 13 Pae. 150. a charge would be violated by the 55 — State v. Cameron, 40 Vt. 555, jurors bearing it in mind to follow in which it was said: "Such in- it. It was the* duty of the jury to structions would not be sensible. think on this subject enough to see The jury could not think of the they did not allow it to prejudice charge without thinking of the sub- the respondent." jects of the charge, and one of the 56 — State v. O 'Grady, 65 Vt. 66. subjects of the charge was re- 57 — Com. v. Harlow, 110 Mass. 411. 734 s Instructions to Jueies. [§ 333 tion will prevent honest jurymen from making the infer- ence. 58 Where there are two defendants, and one of them tes- tifies hut the other does not, an instruction prefaced with the statement, "one accused and on trial charged with the commission of a crime may testify in his own hehalf or not, as he chooses, ' ' and which then proceeds to state that if he does not testify the same rules apply to him as to other witnesses, is not ground for reversal. 59 But.it has also heen held that an instruction that codefendants are disqualified from testifying and that the jury should not draw any Unfavorable inferences from the fact that they were not witnesses for a defendant, need not be given. 60 It has been held that it is riot erroneous to employ the words, "no inference of guilt should arise in the minds of the jury,'* instead of the words, "no inference of guilt shall arise," etc. 61 And a charge that "there is no pre- sumption to be taken against a defendant by reason of the fact that he does not take the witness stand," and that defendant could say to the prose6ution: '.'Prove your case against me. It is my judgment that the situation is such that I am not bound to take the witness stand, and the law gives me that right, and the law gives me that privi- lege," — has been held not erroneous, as conveying an in- sinuation that it would be detrimental / to defendant 's interest to take the stand. 62 Where the court has instructed that defendant "has a right to go upon the witness stand and testify in his own behalf if he chooses to do so. If he does not choose to do so, the law expressly provides that no presumption adverse to him is to arise from the mere fact that he does not place himself upon the witness stand. So, in this case, the mere fact that this defendant has not availed himself of the 58— State v. Wines, 65 N. J. L. 31. 61— State v. Krug, 12 Wash. 288, 59— People v. Spira, 264 111. 243. 41 Pac. 126. 60— State v. White, 48 Ore. 416, 62— People v. Hayes, 140 N. Y. 87 Pae. 137. 496. § 333] Absence op Allowable Evidence. 735 privilege which the law gives him should not be permitted by you to prejudice him in any 'way, ' ' — it is not error to refuse to instruct that the jury are absolutely bound by their own oaths to see that they do not allow their minds to be prejudiced in the slightest degree against the defend- ant by the fact that he did not testify in his own behalf. 63 An instruction directing the jury to pass upon the evi- dence as though the accused was not by law allowed to testify, has been held erroneous. 64 An instruction that the failure of the. accused to testify does not relieve the state from the obligation to produce evidence which will establish guilt beyond a reasonable doubt, is not an error for which a verdict of guilty will be reversed. 63 63— People v. Watson, 54 Hun (N. 65— Tate v. State, 76 Ohio St. 537, Y.) 637. 10 Ann. Cas. 949. 64— People v. Enright, 256 111. 221, Ann. Cas. 1913 E 318n. CHAPTER XXX. Instructions on the Credibility of "Witnesses and the Probative Force of Evidence. § 334. Right and duty to give cautionary instructions. § 335. Credibility of witnesses and effect of evidence in general. § 336. Conflicting evidence. § 337. Instructions as to positive and aegative testimony in jurisdictions where charge on weight of evidence is prohibited. § 338. Appearance and information of witnesses. , § 339. Manner of testifying, bias, etc. § 340. Corroboration of witnesses. § 341. Admissions in civil cases to be received with caution. § 342. Same — Instructions giving undue weight to this class of evidence. § 343. Instructions as to admissions of record. § 344. Admissions and confessions in criminal cases. § 345. Same — What instructions may properly be given. § 346. Admissions and confessions in criminal cases to be received and weighed with caution. § 347. Same — Instructions giving undue weight to evidence. § 348. Testimony of parties and interested witnesses. § 349. Same — Rule in Alabama,, Indiana, Kentucky, Mississippi and Texas. § 350. / Sufficiency of instructions as to credibility of party and weight of evidence in civil eases. § 351. Same — Criminal cases. § 352. Instructions tending to disparage testimony of accused. § 353. Instructions as to contradictory statements of accused and corrobo- ration. | 354. Instructions as to testimony of accused and wife or other relations, etc. § 355. Instructions as to credibility of other witnesses. § 356. Credibility of particular classes of persons. § 357. Police officers and detectives. § 358. Same — Employees. | 359. Same — Attorneys. § 360. Same — Experts. § 361. Unsworn statement of defendant in criminal cases. § 362. Testimony of accomplices. § 363. Instructions that jury may convict on testimony of accomplice. § 364. Instructions that evidence of accomplice is to be received with caution. (736) § 334] Credibility and Probative Force op Evidence. 737 § 365. Advising jury to acquit unless corroborated. § 366. Binding instructions to acquit unless corroborated. § 367. Explaining nature of corroboration required. § 368. Instructing as to who 'are accomplices. § 369. Instructions giving undue weight to accomplice testimony. § 370. Evidence on which to base instructions as to accomplices. § 371. Testimony of expert witnesses. § 372. Necessity of requesting instructions as to expert witnesses. § 373. Instructions as to expert witnesses in general. § 374. Instructions tending to discredit expert testimony. § 375. Instructions directing jury to attach great weight to expert testi- mony. § 376. Instructions with regard to hypothetical questions. § 377. Necessity and propriety of instructions as to testimony of impeached witnesses. § 378. Sufficiency of instructions as to impeached witnesses. § 379. Same — Instructions held erroneous. § 380. Propriety or necessity of instructing as to application of maxim "falsus in uno, falsus in omnibus." § 381. Sufficiency of instructions as to disregarding false testimony. § 382. Instructions that jury "should" or "must" disregard evidence. § 383. Element of intent to swear falsely. § 384. Element of materiality of testimony. § 385. Instructions making corroboration a condition of belief. § 386. Evidence of character. § 387. Necessity of instructions on character. § 388. Sufficiency of instructions as to character. § 389. Instructions limiting effect of evidence to doubtful cases. § 390. Instructing that evidence of good character cannot avail against clear proof of guilt. § 391. Instructing that evidence of good character may create reasonable doubt. § 392. Instructions as to effect of evidence pf good character in cases of great and atrocious criminality. § 393. Identity of defendant. § 334. Right and duty to give cautionary instructions. It has already been noted that it is within the exclusive province of the jury to pass upon the weight and sufficiency of evidence introduced to prove 'or disprove the existence of a fact, and that the credibility of witnesses is exclu- sively a question for the jury. 1 But, in general, it is proper for the court to instruct as to the considerations 1 — See ch. VII, ante, "Province of Court and Jury," §§57-60, et seq. Blashfleld Vol. 1—47 738 Instbuctions to Juries. [§ 334 by which, the jury may or should be controlled in weigh- ing evidence or determining credibility. Such, instructions are frequently given, but, in so doing, care should be taken not to invade the province of the jury. This is the most important limitation on the right and power of the court, and, as will be seen in other sections of this chapter, is most frequently violated. In general, the giving of proper cautionary instructions is largely within the discretion of the court ; 2 and, though great care should be exercised as to the time, manner and form of giving such instructions,' lest they impress the jury that the court has convictions on one side or the other, the discretion of the court will not be limited unless it has been grossly abused. 3 "Where a question submitted to a jury on a special find- ing is so clear and unambiguous as not to require, for the protection of either party, any qualifying charge, the failure to caution the jury in the line suggested by request of a party . is not prejudicial, although such caution, if given, would not have been improper. 4 § 335. Credibility of witnesses and effect of evidence in general. ' It is proper to instruct the jury that they are the sole judges of the credibility of witnesses and the weight of evidence. 5 Such an instruction is frequently given, is cal- 2 — Burehard-Hulburt Inv. Co. v. sur. Co., 70 Mich. 1, 14 Am. St. Rep. Hanson, 143 111. App. 97; Dinsmore 470. v. State, 61 Neb. 418. Missouri. State v. Adair, 160 Mo. 3— Rayburn v. State, 69 Ark. 177. 391; State v. Kelly, 73 Mo. 608. 4 — Lyle v. MeCormick Harvesting Nebraska. Clary v. State, 61 Neb. Maeh. Co., 108 Wis. 81, 51 L. R. A. 688. 906. Pennsylvania. Com. v. Bubnis, 5— Illinois. Chicago & A. R. Co.. 197 Pa. St. 547; McClurkan v. Byers, v. Fisher, 141 111. 614; Chicago Union 74 Pa. St. 405. Traction Co. v. Giese, 130 111. App. Utah. People v. Chadwick, 7 Utah 608, rev'd 229 111. 260; Illinois Cent. 134, 25 Pac. 737. R. Co. v. Smith, 111 111. App. 177, Wisconsin. Lampe v. Kennedy', 60 rev'd 208 HI. 608. Wis. 110. Michigan. Dibble v. Northern As- § 335] Credibility and Probative Fobce of Evidence. 739 culated to impress jurors with a sense of their responsi- bility, and will go far towards preventing other instruc- tions from invading the province of the jury. 6 The court may instruct the jury what circumstances may be consid- ered as affecting the "credibility of witnesses." 7 , And usually an instruction on this subject should refer to the number of witnesses, the consistency of their testimony, its conformity with experience and its coincidence with collateral circumstances. 8 The instructions should not in any case limit the jury to the consideration of matters par- ticularly and specifically mentioned and pointed out in the instruction. 9 Care must be taken not to hamper the jury in passing on the credibility, 10 and it is improper to direct what the jury are or are not to believe from the testimony. 11 To instruct that the jury must or should consider circum- stances affecting credibility is an invasion of the province of the jury, 12 although, in one case at least, such an instruc- tion was held not to be reversible error. 13 An instruction that the jury in determining the credibility of witnesses may consider "surrounding circumstances appearing on the trial" is improper, 14 but an instruction that the jury are the judges of the weight of evidence and the credibility of the witnesses, and telling them that they may "consider the opportunities ' for knowledge of 6 — See Stewart v. Anderson, 111 ness was in a condition to see and Iowa 329. understand what was occurring." 7— Wabash E. Co. v. Biddle, 27 Wheeler v. State, 112 Ga. 43. Ind. App. 161. 8— Foulkes v. Steward, 182 111. The following instruction is not App. 193. erroneous: "You have a right to 9 — Lyons v. Chicago City By. Co., consider the circumstances and 258 111. 75. condition of any witness as proven 10 — Illinois Cent. B. Co. v. Burke, to have been at the time of the 112 111. App. 415. incidents about -which said witness 11 — Eyan v. People, 122 111. App. testifies. You may consider such 461. condition of any witness as to so- 12 — Wabash E. Co. v. Biddle, 27 berness, the surroundings of such Ind. App. 161. witness, with reference to deter- 13 — State v. Fisher, 162 Mo. 169. mining whether ' or not such wit- 14 — People v. Terrell, 262 111. 138. 740 Instructions to Juries. [§ 335 the facts about which, they have testified, the extent, if at all, that they have been corroborated or contradicted by other evidence in the case, together with such other facts as will aid you in weighing the testimony," relates to such other facts as are shown by the evidence. 15 An instruction that a credible witness is ' ' one who, being competent to give evidence, is worthy of belief," is proper and sufficient where no special charge defining such term is requested. 16 ' It is for the jury to say "what part of the evidence of a witness should be given most weight, * * * and it is error for the trial judge to charge that one part of the tes- timony is to be given more weight than another. ' ' 17 An instruction that the jury cannot "weigh" the testimony is improper, 18 and an instruction that certain evidence is to be treated "with like effect" as certain other evidence, is erroneous, since it is the province of the jury to determine, in view of all the circumstances, how much credence they will give to any particular evidence. 19 An instruction that the jury are the sole judges of the "weight and impor- tance" of the testimony of the various witnesses is erro- neous, as it makes the jury the judges of the materiality of the testimony. 20 In a prosecution for the rape of a female under the age of consent, an instruction that testimony as to the reputa- tion of the complaining witness for truth and veracity is immaterial, is erroneous as invading the province of the jury. 21 It is proper to instruct that the jury are not bound to 15 — Cincinnati, C, C. & St. L. Ry. 19 — Connecticut Mut. Life Ing. Co. Co. v. Simpson, — Ind. — , 104 N. v. Hillmon, 46 C. C. A. 668, 107 Fed. E. 301. 834. 16 — Hart v. State, — Tex. Cr. App. 20 — Hansberger v. Sedalia Blec. — ', 166 S. W. 152. Railway, Light & Power Co., 82 Mo. 17_Owen v. Palmour, 111 Ga. 885. App. 566. 18 — Barrow v. State, 71 Tex. Cr. 21— People v. Gray, 251 111. 431. App. 549. § 336] Credibility and Probative Force of Evidence. 741 believe a thing to be a fact merely because testified to be so by a witness, if they believe from the evidence that the witness was mistaken or had sworn falsely. 22 So it is proper to refuse to instruct that the testimony of a certain witness should be considered with great distrust, since the weight to be given thereto is a question for the jury. 23 The reputation of a witness is presumed to be good until im- peached, but there is no presumption that his testimony is true, and it is reversible error to so instruct. 24 An instruction that "if the jury are satisfied either from all the facts and circumstances proven on the trial, that such witness or witnesses are mistaken in material matters testified to by them, or that from any other reason their testimony is untrue or unreliable," is fatally erroneous. 25 An instruction that the jury are the exclusive judges of the credibility, of the weight of the evidence, and all the facts proved, is not open to the objection -that it omits to tell "the jury that they are the judges of the credibility of the 'witnesses.' " 26 An instruction directing that the same consideration be given depositions as is given evidence in open court, is proper. 27 Where the evidence consists partly' of deposi- tions and partly of oral testimony, an instruction "that the jury are the sole judges of the credibility of. the several witnesses that had' appeared before them, ' ' is erroneous, as the jury might infer that the credibility of the deposi- tions was. not open to question. 28 • § 336. Conflicting evidence. - Instructions as to conflicting evidence have been referred 22 — Goss Printing Press Co. v. 26 — Binyon v. State (Tex. Cr. Lempke, 90 111. App. .427, aff'd'191 App.), 56 S. W. 339. 111. 199. 27— Coburn v. Moline, E., M. & W. °23— Tarbell v. Forbes, 177 Mass. Ry. Co., 149 111. App. 132. 238. 28 — Haneberger v. Sedalia Electric; 24— State v. Taylor, 57 S. C. 483, Railway, Light & Power Co., 82 Mo. 76 Am. St. Rep. 575. App. 566. 25— Poole v. State, 100 Miss. 158. 742 Instructions to Juries. [§ 336 to in the chapter dealing with instructions as to the burden of proof. 29 Thus it has been held that an instruction that the jury should find for the defendant if the evidence is equally balanced, is proper, 30 but an instruction requiring the jury to find for the defendant if the evidence is evenly balanced and the jury are in doubt, has been held mis- leading. 31 An instruction requiring the adoption of a theory lead- ing to acquittal if as reasonable as that leading to convic- tion, has been held properly refused. 32 It has been held that the court need not call attention to a conflict in the evidence, unless a request for an instruc- tion of that character has been made, 33 but if there is a conflict in the evidence, it is not improper to state rules for weighing such testimony. 34 The refusal of instructions on the credibility of wit- nesses who make conflicting statements is error. 35 In a criminal case no error is committed in instructing the jury in the general charge that "if there are conflicts between the witnesses, which you cannot reconcile, you have the right to believe one witness and disbelieve the 1 other, ' ' 3e and an instruction requiring the jury to reconcile evidence and attribute contradictions to lack of memory rather than falsehood, is hot prejudicial. 37 It is proper to charge the jury that, "in considering and weighing the evidence, you should use the same judg- ment, reason, common sense, and general knowledge of men and affairs as you have in everyday life," 38 and that 29 — See § 281, et seq., ante. 34 — Steen v. Sanders, 116 Ala. 155; 30— Stephens v. Neilson, 142 111. Farley v. Eanok, 3 Watts & S. (Pa.) 1 App. 263; Dehlinger v. City of Chi- 554; McGhee v. Smith, 6 Heisk. cago, 100 111. App. 314. (Tenn.) 316; Young v. State,- 2 Yerg. ' 31— Sears, Eoebuck & Co. v. Win- (Tenn.) 292. cheater Bepeating Arms Co., 178 111. 35 — Conlon v. Chicago Great App. 318. ' Western E. Co., 139 111. App. 555. 32— Parsons v. People, 218 111. 386. 36— Marshall v. State, 54 Fla. 66. 33 — Balph v. Liberty Nat. Bank, 37 — Bleick v. People, 227 111. 80. 179 Pa. St. 430. 38— Morrison v. State, 42 Fla. 149. § 336] Credibility and Pbobative Force of Evidence. 743 the jury must decide who of the witnesses is entitled to the greater credit. 39 So it is proper to instruct "that the credibility of the witnesses is a question exclusively for the jury, and the law is that, where a number of witnesses testify directly opposite to each other, the jury is not bound to regard the weight of evidence as equally bal- anced. The jury have the right to determine, from the appearance of witnesses on the stand; their manner of tes- tifying, and their apparent candor and fairness, their ap- parent intelligence, and from all the other surrounding circumstances appearing on the trial, which witnesses are more worthy of credit, and to give credit accordingly. ' ' 40 It has also been held proper to instruct : " It is the duty of the jury to\ look at all the material evidence in the case in order to determine what is the real and true state of facts; and they will weigh all the evidence in the case, so as to reconcile all the evidence Where it may seem to con- flict, or apparently conflict, if you can do so. You will not capriciously reject any evidence, but reconcile it all, if you can do so;" 41 but that, if this cannot be done, they may believe or disbelieve any witnesses, according as they may or may not consider them entitled to credit. 42 On the other hand, in case the evidence is conflicting, it is not proper to charge that the jury should endeavor to reconcile the evidence with the theory of defendant's inno- cence; 4S or that the jury must believe the testimony, of a particular witness; 44 or that the case depends solely on the veracity of a designated witness. 45 Where the plaintiff and principal defendant contra- dicted each other, it is not error to refuse to instruct that, "in estimating the value of the plaintiff's services, the jury are not bound by his testimony, even though it is not 39— Rideus v. State, 41 Tex. 200. 43— People v. Madden, 76 Cal. 521, 40— Horton v. Com., 99 Va. 848. 18 Pac. 402. 41— Steen v. Sanders, 116 Ala. 155;. 44— State v. Parker, 66 N. C. 624. 42 — Liverpool & L. & G. Ins. Co. 45 — Fullam v. Rose, 160 Pa. St. 47. v. Ende, 65 Tex. 118. 744 Instructions to Juries. [§ 336 contradicted or controlled by the evidence. Upon such questions, the jury are to be guided by their own skill and knowledge, as well as by the testimony which is given by witnesses at the trial." 46 So it is error to instruct the jury that if there is a conflict in the- evidence of the wit- nesses, and the jury cannot reconcile that evidence, they should believe that witness or those witnesses who have the best opportunity of knowing the facts about which they testify, and the least inducement to swear falsely, since the credibility of the witnesses, and the weight to be given the evidence of each, is a matter which must be left solely to the jury. 47 - Where the evidence conflicts as to the name "Matt" or ' ' Max, ' ' an instruction that the law does not favor extreme technicalities, where names have the same sound, is erro- neous and misleading. 48 § 337. Instructions as to positive and negative testimony in jurisdictions where charge on weight of evi- dence is prohibited. It is a rule of evidence well supported by the decisions of the courts, 40 "that the' positive testimony of one cred- ible* witness to a fact is entitled to more weight than that of several others [equally credible] who testify negatively, or * * * to circumstances merely persuasive in their character," from which a negative will be inferred. 50 There are exceptions to the rule, 51 but as was said in one 46 — Wyman v. Whieher, 179 Mass. Missouri. Isaacs v. Skrainka, 95 276. Mo. 517; Henze v. St. Louis,' K. 0. 47— Southern Mut. Ins. Co. v. Hud- & N. Ry. Co., 71 Mo. 639. son, 113 6a. 434. Wisconsin. Hinton v. Cream City 48— Vineendeau v. People, 219 111. R. Co., 65 . Wis. 337. 474, rev'g 119 111. App. 603. United States.' Rhodes v.- United 49 — Alabama. Kennedy v. Ken- States, 25 C. C. A. 186, 79 Fed. 740; nedy, 2 Ala. 616. Au v. New York, L. E. & W. R. Co.. Illinois. Frizell v.* Cole, 42 111. 362. 29 Fed. 72. Louisiana. State v. Chevallier, 36 50—3 Greenl. Ev., § 375. La. Ann. 83. 'SI — "Evidence of a negative na- § 337] CREDIBILITY AND PeOBATIVE FoECE OP EVIDENCE. 745 well-considered decision: "When one witness swears posi- tively that he saw or heard a fact, and another, who was present, merely swears that he did not see or hear it, and the witnesses were equally faithworthy, the general prin- ciples would, in ordinary cases, create a preponderance in favor of the affirmative, where the position can be recon- ciled with the negative." 52 Considerable conflict of authority exists as to whether instructions embodying this principle should be given to the jury, but an investigation of the cases shows that this is largely due to .the conflict of authority as to charging with respect to matters of fact or commenting on the weight of evidence, a subject which has been treated in a prior chapter. 53 In the jurisdictions where statutory or organic provi- sions exist, prohibiting the trial court from expressing any opinion as to the weight of evidence, such an instruction ture may, under particular circum- stances, not only be equal, but su- perior, to positive evidence. This must always depend Upon the ques- tion whether the negative testimony can be attributed to inattention^ error, or defect of memory, and whether the witnesses had equal means and opportunities for ascer- taining the facts to which they testify and exercised the same. Sup- pose six persons, whose sense of hear- ing is excellent, and who are other- wise equally competent, were placed in a room and told to watch whether the clock found in it strikes, or not, the hour; that, faithful to their in- structions, they had so. watched when the large hand passed over twelve, and had so continued watching for five minutes or more, and that, when interrogated, two were to swear that the clock had struck, and four that it had not, it is manifest that it eould not be claimed' that the. pre- ponderance should be in favor of the testimony of the affirming witnesses. The principle is further inapplicable where a negative depends on the es- tablishment of an opposite fact, such as an alibi, for instance. 1 Starkie, Ev., § 82, p. 516. [See also, Atkin- son v. State, 112 Ga. 411.] It has been often held that it is not true, as a matter of law, that negative evidence may not be sufficient to overbalance positive testimony. Campbell v. New England Mut. Life Ins. Co., 98 Mass. 381; Coughlin v. People, 18 111. 266 [68 Am. Dec. 541] ; Reeves v. Poindexter, 53 N. C. 308. ' ' State v. Chevallier, 36 La. Ann. 83. 52 — State v. Chevallier, 36 La. Ann. 84. 53 — See ch. XII, ante, "Charging with Bespect to Matters of Fact, or Commenting on Weight of Evi- dence." 746 Instkuctions- to Jubies. [§337 is erroneous, but in other jurisdictions it is proper. Ac- cordingly, such an instruction has been held erroneous in Arkansas, Illinois, Indiana, Missouri and Texas, 64 it being held that the credibility of witnesses and the weight to be given their testimony are always questions for the jury, 55 and that it is not the province of the court to tell the jury which evidence is the strongest, or entitled to the most weight. 56 In Illinois, however, there are some decisions which apparently conflict with the general rule, 57 and in one of these cases the following instruction was approved: "When one witness testifies that a certain fact took place, or that certain words were spoken, and several other wit- nesses, equally credible, testify that they were present at the time and place where the fact took place, or where 54 — Arkansas. Keith v. State, 49 Ark. 439. See also, Sibley v. Bat- liffe, 50 Ark. 477, in which a request for an instruction attempting to apply the rule as to positive and negative testimony was condemned as falling short of stating the full position, but the court, citing Keith v. State, ante, said: "It may be doubted whether, if proper in any case to instruct the jury on the weight to be given to evidence, it cannot be said to. be error to refuse to do so." Illinois. Indiana,. I. & I. B. Co. v. Otstot, 212 111. 429, aff'g 113 111. App. 37; Louisville, N. A. & C. By. Co. v. Shires, 108 111. 619; Frizell v. Cole, 42 111. 362; Bockwood v. Poundstone, 38 111. 201; Preston v. Moline Wagon Co., 44 111. App. 342. See also, Atchison, T. & S. F. E. Co. v. Feehan, 149 III. 202, where a request for an instruction as to th^e relative weight of positive and negative testimony was refused, be- cause, as drawn, it was not ap- plicable to the facts of the case. Compare Chicago &. N. W. Ey. Co. v. Dunleavy, 129 111. 132, which is ap- parently in conflict with the other Illinois decisions. Indiana. Ohio & M. Ey. Co. v. Buck, 130 Ind. 300; Louisville, N. A. & C. Ey. Co. v. Stommel, 126 Ind. 35. Missouri. Johnson v. Springfield Traction Co., — Mo. — , 161 S. W. 1193; Chubbuck v. Hannibal & St. J. B. Co., 77- Mo. 591; Milligan v. Chicago, B. & Q. E. Co., 79 Mo. App. 393; State v. Kansas, City, Ft. S. & M. E. Co., 70 Mo. App. 634. Texas. Sparks v. Dawson, 47 Tex. 138; Haskew v. State, 7 Tex. App. 107. 55— Louisville, N. A. & C. By. Co. v. Stommel, 126 Ind. 35. The weight of positive and nega- tive evidence is for the jury. John- son v. Springfield Traction Co., — Mo. — , 161 S. W. 1193. 56 — Louisville, N. A. & C. By. Co. v. Shires, 108 111. 617. 57— Chicago & N. W. Ey. Co. v. Dunleavy, 129 111. 132, aff'g 27 111. App. 438; Frizell v. Cole, 42 111. 362. § 337] Credibility and Pbobative Force of Evidence. 747 the words were spoken, and had the same means of infor- mation, and further testify that such fact did not exist, or that the words were not spoken, it is their province to weigh the testimony, and give a verdict according to the weight of testimony, as it may preponderate on either side." 58 This instruction does not state that the jury are to give more weight to positive than to negative testimony, however, and it is therefore not objectionable to the rule against charging on the weight of evidence. In Alabama it has been held, without deciding on the propriety of instructing on this rule, that a failure of a request to hypothesize equal means of knowledge on the part of the witnesses whose testimony the court is asked to compare, and to draw certain conclusions from the com- parison for the enlightenment of the jury, warrants its refusal. 59 In Kansas it has been held to be the duty of the court, upon request, to call the attention of the jury to the rela- tive value of positive evidence that signals were given by a railway train approaching a crossing, and merely nega- tive testimony that they were not given. 60 In Georgia, although the court is prohibitld from charg- ing on the weight of the evidence, an instruction that, everything else being equal, "positive testimony is to be believed rather than negative testimony," has been ap- proved. 61 Where only one witness was sworn for the state and one for defendant, and the testimony of defendant's witness was in part positive and in part negative, a charge on the rule as to positive and negative testimony, as to the nega- tive part of such witness' testimony, was held proper. 62 And where witnesses in behalf of the state swore positively 58— Frizell v. Cole, 42 111. 362. 61— Atlanta & W. P. R. Co. v. 59— Louisville & N. R. Co. v. Newton, 85 Ga. 517. , Miller, 109 Ala. 500. 62— Neill v. State, 79 Ga. 779* 60 — Missouri Pae. Ry. Co. v. Mof j fatt, 56 Kan. 667, 44 Pac. 607. 748 Instructions to Juries. [§337 to the commission of the crime, and the evidence in behalf of the defendant consisted of testimony tending to show an alibi, and to impeach the state's witnesses, it was held that a charge on the law as to the relative value of positive and negative testimony was not applicable. 83 In Maine it has been held that after explaining to the jury the difference between positive and negative testi- mony, the court may designate certain testimony as not positive. 64 In jurisdictions where the court is not pro- hibited from charging on the weight of, evidence, it has been held that instructions embodying the rule mentioned in the previous section are proper. 65 It has been held, however, that such an instruction may with equal propri- ety be refused. 66 And although the court did not state any reason for its holding, it is sanctioned by the rule that it is entirely within the discretion of the trial judge whether lie shall express an opinion as to the weight of the evidence, even in jurisdictions where such a charge is permissible, and that he can under no circumstances be required to do so. 67 Where much of the testimony was of a negative char- ,63 — Atkinson v. State, 112 Ga. 411. B. Co., 152 Pa. St. 326, where it was 64 — Knight v. Thomas (Me.) 7 held that, in case of ' ' conflicting tes- Atl. 538. timony as to whether a bell was rung 65 — Hess v. Williamsport & N. B. or not before a train approached a B. Co., 181 Pa. St. 492; TJrias v. grade crossing, the court should posi- , Pennsylvania E. Co., 152 Pa. St. tively call the attention of the jury 326; Olsen v. Oregon Short Line & to the difference between positive U. N. By. Co., 9 Utah 129, 33 Pae. and negative testimony upon a ques- 623; Hildman v. City of Phillips, tion of this kind." See also, Hild- 106 Wis. 611; Hinton v. Cream City man v. City of Phillips, 106 Wis. 611, B. Co., 65 Wis. 337; Bhodes v. United wherein it was held error to refuse States, 25 C. C. A. 186, 79 Fed. 741; to give an instruction as to the rela- Denver & B. G. B. Co. v. Lorentzen, tive weight to be given positive and 24 C. C. A. 592, 79 Fed. 291; Au v. negative testimony. New York, L. E. & W. E. Co., 29 67— See ch. XII, ante, "Charging Fed. 72. with Bespect to Matters of Fact, or 6(5 — Olsen v. Oregon Short Line & Commenting on Weight of Evi- U. N. By. Co., 9 Utah 129, 33 Pac. dence." 623. Compare Urias v. Pennsylvania § 337] Credibility and Pbobativb Foece of Evidence. 749 acter, it has been held that an instruction "that it v,sas for the jury to consider how much this testimony was worth as against positive testimony, and that, ordinarily, the evi- dence of a witness who swears positively to a thing, or em- phatically says that he saw something, is more valuable than that of witnesses who say they did not see," was proper. 68 So it has been held proper to instruct that "where there is a conflict of testimony, and one testifies positively to a thing within his peculiar knowledge or in- formation, and the testimony of the other is a mere denial of that which is not within his peculiar knowledge or in- formation, the positive testimony will generally prevail over the negative testimony; but it is always a question for the jury to determine whether the witness who testifies about a given fact, although it may be in denial of it, had the opportunity of knowing, seeing, and hearing as well as the other witness had." 69 And .the following instruc- tion has also been approved: "The positive testimony of one credible witness to a fact is entitled to more weight than the testimony of several witnesses, equally credible, who testify negatively, or to collateral circumstances merely persuasive in their character, from which a nega- tive may be inferred. ' ' 70 An instruction "that the positive testimony of a wit- ness to the existence of a certain thing, and the testimony of another witness that such a thing does not exist, are equally credible," has been held erroneous, as a mis- statement of the rule, 71 and an instruction "that negative testimony was confined to that of a witness who, though present at a transaction, says that he did not see or did 68 — Ehodea v. United States, 25 0. 71 — Smith v. Milwaukee Builders' C. A. 186, 79 Fed. 740. & Traders' Exchange, 91 Wis. 360, 69— Au v. New York, L. E. & W. 30 L. E. A. 504, 51 Am. St. Eep. E. Co., 29 Fed. 72. 912. 70 — Hinton v. Cream City E. Co., 65 Wis. 337. 750 Instructions to Juries. [§337 not hear," was erroneous, because testimony positive in form may amount merely to negative testimony. 72 Where the plaintiff testified that after the accident she said to the conductor, "It is all your fault," and the con- ductor denied that she made such remark to him, it is error to instruct that the presumption is that the plaintiff made the remark, rather than that she did not, though the jury are also told that it is for them to say whether it is of any importance. 73 And an instruction as follows: "It is some- times said that affirmative testimony is of more value than negative testimony. But I charge you that, where one man affirms a fact and another positively denies it, the denial is not negative testimony, within the rule just stated," — has been condemned on the ground that such a denial was clearly negative testimony. 74 In an action for injuries caused by a collision at a grade crossing, where five persons on the locomotive testified pos- itively that lights were displayed, the bell rung, and whistle blown, and two persons on the track testified that they did not see the light, nor hear the bell or whistle, an instruc- tion that most of plaintiff's testimony was negative, that his witnesses merely testified that they did not see any lights or hear any bell or whistle, "negative testimony of this kind has much less weight than positive testimony," was held erroneous, as being inadequate and too meager. 75 § 338. Appearance and information of witnesses. It is proper to direct the jury to consider the appearance and conduct of the witnesses, 76 and it is proper to direct the jury to consider the intelligence and capacity of the witnesses. 77 So an instruction authorizing greater weight 72 — Smith v. Milwaukee Builders' 75 — Hess v. Williamsport & N. B. & Traders' Exchange, 91 Wis. 360, R. Co., 181 Pa. St. 492. 30 L. R. A. 504, 51 Am. St. Rep. 76 — Chicago Union Traction Co. v. 912. Browdy, 108 111. App. 177, rev 'd 206 73 — Metropolitan R. Co. v. Martin, 111. 615. 15 App. Cas. (D. C.) 552. 77 — Manufacturers' Fuel Co. v. 74— Kelley v. Schupp, 60 Wis. 86. White, 228 111. 187, aff'g 130 111. § 339] Credibility and Pbobative Force of Evidence. 751 to be given to the testimony of witnesses having superior means of information is not misleading. 78 But an instruc- tion on the number, appearance and veracity of witnesses is erroneous when the tests for determining the credit due such witnesses are omitted. 79 § 339. Manner of testifying, bias, etc. It is proper to instruct that the jury may consider any bias, feeling or partiality exhibited by the witnesses. 80 The conduct of a witness on the stand may be properly commented upon by the court as affecting the credibility of the witness. So, where witnesses exhibit much feeling, the trial judge has a right to notice and comment upon a fact so transpiring in the presence of the eourt and jury. 81 Instructions upon this subject, as in other cases, must not be confused and misleading, 82 and must not invade the province of the jury. 83 An instruction that the jury are App. 20; North Chicago St. B. Co. v. Wellner, 206 111. 272, aff'g 105 111. App. 652. i 78— Grabill v. Ben, 110 111. App. 587. 79 — Jones v. Sampsell, 148 111. App. 158. 80 — Arkansas. Felker v. State, 54 Ark. 489.. California. People v. Wheeler, 65 Cal. 77, 2 Pac. 892; People v. Cronin, 34 Cal. 192. Connecticut. State v. Fiske, 63 Conn. 392. Illinois. Bevelot v. Lestrade, 153 111. 625. Indiana.. Young v. Gentis, 7 Ind. App. 199; Goodwine v. State, 5 Ind. App. 63. Iowa. Little v. McGuire, 43 Iowa 450. Kansas. State v. Bohait, 19 Kan. 35. Minnesota. State v. Hogard, 12 Minn. 293 (Gil. 191). Missouri. State v. Adair, 160 Mo. 391. Nevada. State v. Streeter, 20 Nev. 403, 22 Pae. 758; State v. Hymer, 15 Nev. 51. North Carolina. State v. Nat, 51 N. C. 115. Pennsylvania. Oridland v. Crow, 221 Pa. 618. Washington. Klepsch v. Donald, 4 Wash. 436, 31 Am. St. Bep. 936, 30 Pae. 991. Contra, Oliver v. State (Tex. Cr. App.), 42 S. W. 554; Isham v. State (Tex. Cr. App.), 41 S. W. 622. 81— People v. Bene, 130 Cal. 159, 62 Pac. 404; Morton v. O'Connor, 85 HI. App. 273; State v. Adair, 160 Mo. 391; State v. Nat, 51 N. C 114. 82— Morton v. O'Connor, 85 111. App. 273, wherein an instruction set out was condemned upon this ground. 83 — People v. Bene, 130 Cal. 159, 752 Instructions to Juries. [§ 339 the judges of the weight to be given to the testimony of a witness from his manner of testifying, as from his evasive- ness when questioned by one party, and his willingness to answer questions favorable to the other, is proper. 84 ' ■The demeanor and conduct of the defendant in a crimi- nal case during the progress of the trial, and while he is not on the witness stand, are no part of the evidence in the case, and it is substantial error to instruct the jury that they have a right, in determining the degree of credibility that shall be accorded to the testimony of defendant, to consider his demeanor and conduct on the witness stand and during the trial. It is easily conceivable that various circumstances, not growing out of the orderly development of the trial, may arise which will cause an innocent man to do things indicative, to an ordinary observer, of guilt. 85 But an instruction that the jury may determine from the demeanor of witnesses and from all the surrounding cir- cumstances on the trial what witnesses are worthy of credit is not erroneous as calling attention to the demeanor of the defendant during the trial. 86 § 340. Corroboration of witnesses. Where the unsworn testimony of a child is received in evidence under a statute which provides that no person shall be convicted on such testimony unsupported by other evidence, it is reversible error to refuse to charge that, 62 Pae. 404; Morton v. O'Connor, 85 neous in that it tells the jury how 111. App. 273. In the former case a they should determine the degree of charge" that ' ' the degree of credit credit due to a witness, and there- due to a witness should be deter- fore constitutes an invasion of the mined by his character and conduct, province of the jury, as such an by his demeanor on the stand, his instruction cannot do any harm, for relation to the controversy and the it merely tells the jury to do cer- parties, his hopes, his fears, his tain things, which jurors would evi- bias, and his partiality, the reason- dently do without being so told, ableness of the statements he makes, 84 — Brown v. Stacy, 5 Ark. 403. the strength or weakness of his recol- 85 — Vale v. People, 161 111. 309; lection, viewed in the light of all the Purdy v. People, 140 111. 46. testimony, the facts, and circum- 86 — People v. Curtright, 258 111. stances in the case," is not erro- 430. § 341] Credibility and Peobative Foece of Evidence. 753 before a conviction can be had, the evidence not only must tend to support, but "must support, the story of the wit- ness." 87 An instruction that "a witness is only valuable to the extent that his evidence establishes some material fact or circumstance which aids in making clear and plain to your minds some question involved in this litigation," is erro- neous, as it is not incumbent on litigants to make points involved clear and plain. 88 Where, on trial for perjury, an instruction was given: "There must be the direct testimony of at least one cred- ible witness, and that testimony, to be sufficient, must be positive and directly contradictory- of the defendant's oath. In addition to such testimony, there must be either another such witness or corroborating circumstances established by independent evidence, and of such a character as clearly to turn the scale and overcome the oath of the defendant and the legal presumption of his innocence; otherwise, the de- fendant must be acquitted," — and in another instruction the court said: "The additional evidence must be at least strongly corroborative of the testimony of the accusing witness, ' ' — it was proper to refuse to instruct, on the ques- tion of corroboration, that "there must be something in the corroborative evidence which makes the facts sworn to by defendant not true if the corroborative evidence be true also. If the corroboration does not go to that extent, the defendant must be acquitted." 89 §341. Admissions in civil cases to be received with caution. There is much conflict of authority as to the propriety of instructing that admissions in civil cases should be received with caution, and this- conflict is also found in criminal cases dealing with such instructions. 90 Such in- 87 — People v. Gralleranzo, 54 App. 89 — People v. Eodley, 131 Cal. 240, Div. (N. Y.) 360. 63 Pac. 351. 88 — Endowment Bank of Order of 90 — See § 344, post. K. P., v. Steele, 107 Tenn. 1. Blashfield Vol. 1—48 754 Instructions to Juries. [§ 341 structions have been condemned as disparaging this class of evidence, 91 and have also been held improper as an in- struction upon the weight of the evidence. 92 Thus it has been said: "Statements in the nature of or tending to prove admissions * * * should be con- sidered and given such weight by the jury as they may think them entitled to, without any advice of the court as to their force. " 9? And in another. case it was held that "the reasons which are to be urged in favor of receiving such statements with caution are based upon human ex- perience, and vary in strength and conclusiveness with the facts and circumstances of each case, and their sufficiency in any particular case is an inference which the reason of the jury makes from those facts and circumstances; but there is no rule of law which directs the jury to invari- ably make such an inference from the mere fact that the proof of the admission is by oral testimony. * * * To weigh the evidence and find the facts in any case is the province of the jury, and that province is invaded by the court whenever it instructs them that any particular evi- 91— California. Kauffman v. Illinois. Mauro v. Piatt, 62 111. Maier, 94 Cal. 269, 18 L. R. A. 124n, 450; Frizell v. Cole, 29 111. 465. 29 Pao. 481. Indiana. Tobin v. Young, 124 Ind. Illinois. Mauro v. Piatt, 62 111. 507; Zenor v. Johnson, 107 Ind. 69; 450; Frizell v. Cole, 29 111. 465. Unruh v. State, 105 Ind. 117; Morris Indiana. Zenor v. Johnson, 107 v. State, 101 Ind. 560; Shorb v. Ind. 69; Lewis v. Christie, 99 Ind. Kinzie, 100 Ind. 429; Lewis v. 377; Newman v. Hazelrigg, 96 Ind. Christie, 99 Ind. 377; Newman 73. v. Hazelrigg, 96 Ind. 73; Finch v. Mississippi. Johnson v. Stone, 69 Bergins, 89 Ind. 360; Davis v. Hardy, Miss. 826. 76 Ind. 272. Montana. Knowles v. Nixon, 17 Mississippi. Johnson v. Stone, 69 Mont. 473, 43 Pae. 628; Wastl v. Miss. 826. Montana Union E. Co., 17 Mont. 213, Montana. Knowles v. Nixon, 17 42 Pac. 772. Mont. 473, 43 Pae. 628; Wastl v. 92 — Arkansas. Shinn v. Tucker, Montana Union E. Co., 17 Mont. 213, 37 Ark. 580. 42 Pac. 772. California. Kauffman v. Maier, Texas. Castleman v. Sherry, 42 94 Cal. 269, 18 L. E. A. 124n, 29 Tex. 59. Pac. 481. 93— Shinn v. Tucker, 37 Ark. 580. § 341] Ceedibility and Pbobative Foece of Evidence. 755 dence which has been laid before them is or is not entitled to receive weight or consideration from them. ' ' 94 On the other hand, there are a large number of decisions which hold that it is not improper for the court to caution the jury against placing too much reliance upon testimony as to admissions. Accordingly, it has been held proper to instruct: That "admissions are regarded as weak testi- mony ; " 95 that, ' ' with respect to verbal admissions, they ought to be received with great caution;" 96 that admis- sions of a party are "the weakest kind of evidence that could be produced;" 97 that "evidence of casual statements or admissions by a party, made in casual conversations, and to disinterested persons, is regarded by law as very weak testimony, owing to the liability of the witness to misunderstand or forget what was really said or intended by the party;" 98 that "admissions should be scanned with care, — the jury should look to them carefuly to see what they mean, and see that they are not being used to imply and to carry with them more meaning than they are justly entitled to;" 99 or "that the verbal admissions of a party to a suit, when made understandingly and deliberately, often afford satisfactory evidence; yet, as a general rule, the statements of a witness as to verbal admissions of a party 'should be received by the jury with great caution, as that kind of evidence is subject to imperfection and mistake. ' ' 1 The following charge on this subject has also been ap- proved: "Evidence consisting of the mere repetition of oral statements, and being therefore subject to much im- perfection and mistake, through misunderstanding, excite- ment, or impulse of the party, and want of proper under- 94 — Kauffman v. Maier, 94 Cal. 97 — Dreher v. Town of Fitchburg, 269, 18 L. E. A. 124n, 29 Pac. 481. 22 Wis. 680. See also, Castleman v. Sherry, 42 98 — Haven v. Markstrum, 67 Wis. Tex. 59. 493. 95 — Nash v. Hoxie, 59 Wis. 384. 99— Stewart v. De Loach, 86 Ga. 96 — Tozer v. Hershey, 15 Minn. 729. 257 (Gil. 197). 1— Allen v. Kirk, 81 Iowa 658. 756 Instructions to Jtjbies. [§341 standing of the words by the hearers, and their imperfec- tion of memory, should be cautiously received; but when such admissions are deliberately made, or often repeated, and are correctly given, they are often the most satisfac- tory evidence; that the jury should consider all the cir- cumstances under which such admissions were made and introduced in evidence, and give them such weight as they were justly entitled to receive. ' ' 2 It is not error not to caution the jury in regard to verbal admissions where' the statements of defendant seem to have been made deliberately and understandingly in a con- versation in which his purpose was to state the particular facts of his connection with the crime. 3 So it has been held proper, after suggesting that evidence of verbal admis- sions should be received with great caution, to charge that the reasons stated constitute a very strong argument, but that it was for the jury to determine the weight of such evidence according to the way in which it affected their own minds. 4 An instruction that the "confessions or declarations of a party, in evidence before them, is the weakest and most unsatisfactory kind of evidence, on account of the facility with which it may be fabricated, and the difficulty of dis- proving it when false," has been held erroneous, for the reason that it confounds the evidence of the admissions with the admissions themselves, and fails to observe the distinction between them. 5 §342. Same — Instructions giving undue weight to this class of evidence. Instructions as to evidence of admissions should not be worded so as to cause the jury to attach undue importance 2 — Martin v. Town of Algona, 40 5 — Higga v. Wilson, 3 Mete. (Ky.) Iowa 392. 338. To the same effect, see Botts 3— State v. Jackson, 103 Iowa 702. v. Williams, 17 B. Mon. (Ky.) 687. 4 — Moore v. Dickinson, 39 S. C. 441. 344] Credibility and Probative Force of Evidence. 757 to such evidence. It is not error to refuse to instruct that, "while proof of the fact that admissions were made, and the terms on which they were made, ought to be cautiously scanned, yet, when deliberately made arid precisely iden- tified, they are usually received as satisfactory. Admis- sions by parties are not to be regarded as an inferior kind of evidence. On the contrary, when satisfactorily proved, they constitute a ground of belief on which the mind re- poses with strong confidence." The weight to be given to admissions of a party depends upon the circumstances under which they are made, and the effect of such circum- stances is to be judged ,by the jury alone, and therefore such instruction invades the province of the jury. 6 ' In one decision, however, it has been held that it is not improper for the court to charge that admissions made before the controversy arose were entitled to great weight. 7 But ordinarily it is error to instruct: That testimony against interest is to be taken as true; 8 "that the admis- sions and declarations of a party are legal and sufficient evidence against him, but not in his fayor;" 9 or "that the admissions of a party to a civil suit are strong evidence against him. " 10 §343. Instructions as to admissions of record. Upon request of either party, the court must instruct the jury what facts are admitted of record. 11 §344. Admissions and confessions in criminal cases. Where a general instruction as to the credibility of wit- nesses and the weight of evidence fairly protects the rights 6 — Phoenix Ins. Co. v. Gray, 113 10— Westbrook v. Howell, 34 111. Ga. 424. App. 571; Earp v. Edgington, 107 7— Buford v. McGetehie, 60 Iowa Tenn. 23. 298. 11 — Evans v. Foreman, 60 Mo. 8— Eplfland v. Missouri Pac. Ry. 449. Co., 57 Mo. App. 147. 9— Baker v. Kelly, 41 Miss. 696, 93 Am. Dec. 274n. 758 Instructions to Jubies. [§344 of a defendant, it is not error to refuse a special instruc- tion as to the law relating to a confession. 12 But, in gen- eral, evidence of confessions, like any other evidence, ought to he the subject of appropriate instructions to the jury, so that they can consider and pass upon the weight of the evidence, and determine whether or not it is entitled to any weight. There may be many circumstances sur rounding the making of a confession which may very much affect it, and these are for the consideration of the jury. 13 If two or more defendants are jointly indicted- and tried, the jury should be instructed thai admissions or confes- sions made by one defendant, not in the presence of the other, should not be considered as evidence against the defendant who did not make them. 14 And Jn instructing on this question, a general charge "thai the jury should not consider any admission or declaration of one prisoner against the others, unless they were present when made, ' ' will not be sufficient. The attention of the jury should be directed to the specific admission, and they should be cau- tioned not to give it any weight in determining the guilt or innocence of the party who is not bound by it. 15 Where no issue is presented by the testimony as to the voluntary character of the confessions of defendant, it is proper to refuse to charge the jury that, before they could consider confessions made by defendant, they must believe the same were made voluntarily, and not under proiiiise, or induced by improper influence. 16 Where defendant, when on the stand, denies that the confessions are freely and voluntarily made, and claims that he was induced to make same by promises to him by an officer, the court should instruct the jury on this 12 — Hardesty v. State, 95 Neb. Wilkerson v. State (Tex. Cr. App.), 839. 57 S. W. 956. See also, Gtivens v. 13 — Lismore v. State, 94 Ark. 207; Williams v. State, 63 Aft. 527 State v. Montgomery, 26 S. D. 539. 14— State v. Talbott, 73' Mo. 348 State v. Oxendine, 107 N. C. 783; State, 103 Term. 648. 15 — State v. Oxendine, 107 N. C. 783. 16 — Bailey v. State, 42 Tex. Cr. App. 289. § 344] Cbedibility and Probative Foece of Evidence. 759 point, and inform them that if they do not believe that said confessions are freely and voluntarily made by the defendant, but on compulsion or promises on the part of the officer, they may wholly disregard the same; and this, notwithstanding no exception is taken to the failure of the court to so charge. 17 Where two theories are presented by the evidence, one of which renders the confession admissible, and the other excludes it, if the court, after hearing the testimony, should, in a case where such confession is very material, conclude to admit it, it then becomes the duty of the court to instruct the jury, if they believe that the confession was not freely and voluntarily made, after having been warned by the officer, as the statute requires, but that same was induced by duress, threats or coercion on the part of the officer, to wholly disregard and not consider such confession. 18 Though there is evidence of a conspiracy between de- fendant and others to do the acts for which, defendant is prosecuted, yet the court should grant a request to charge that the jury will disregard the testimony of the acts of the alleged co-conspirators unless a conspiracy is shown. 19 Where the confession of the defendant is not disputed, or its meaning, there is no necessity of calling the attention of the jury to it, for it is not likely that they will forget it. To predicate error on refusal to instruct concerning con- fessions, it should appear that it was either necessary, or that it was the duty of the court to instruct the jury on that subject. 20 Where the admissibility of a confession is the dominant 17^-Paris v. State, 35 Tex. Cr. 19— Segrest v. State (Tex. Cr. App. 82. In this case it was further App.), 57 S. W. 845; Casner v. State, held that a failure of defendant to 42 Tex. Cr. App. 118. take any exception made no differ- 20 — Bernhardt v. State, 82 Wis. ence. See also, State v. Moore, 160 23. Mo. 443. 18— Sparks v. State, 34 Tex. Cr. App. 86. 760 Instructions to Juries. [§344 ** * question before the jury, it is error to refuse a request to charge on the subject of confessions, though the request is faulty. 21 An instruction that, "if you [the jury] find and believe that any statements of the defendant have been proven by the state, and not denied by the defendant, then they are to be taken as admitted as true, ' ' is erroneous, as charging in effect that defendant must specifically deny every state- ment attributed, to him. 22 Where independent of the confessions or admissions of a defendant there is evidence proving the corpus delicti be- yond a reasonable doubt, it is unnecessary to give an in- * struction concerning the weight to. be given confessions. 21 ' An instruction which does not confine the jury to the con- sideration of confessions made as to the crime charged is improper, 24 and it' is also erroneous to intimate an opinion as to whether an admission was made seriously. 25 - So, in- structions on the subject of confessions or admissions which are. not based" on any evidence in the case should not be given ; 26 as, for instance, where, on a criminal trial, there is other evidence against the prisoner besides his confes- sions, it is proper to refuse an instruction that confessions not corroborated will not warrant a conviction. 27 It is also error to charge that defendant has made an admission, when- such is not the case, 28 or to assume that the defendant has made an admission or confession ; 29 and an instruction as to a confession is error when it causes the jury to be- 21 — State v. Moore, 160 Mo. 443. confession, but simply evidence of 22 — State v. Hollingsworth, 156 an admission of a fact which might Mo. 178. tend to criminate, it is error to 23 — Lee v. Com., 155 Ky. 62. charge the jury as to the law in re- 24 — Lismore v. State, 94 Ark. 207. gard to confessions. Suddeth v. 25— People v. Brow, 90 Hun (N. State, 112 Ga. 407. Y.) 509. 27— Com. v. Tarr, 4 Allen (Mass.) 26— Com. v. McCann, 97 Mass. 580; 315; Bailey v. State, 42 Tex. Cr. App. Com. v. Tarr, 4 Allen (Mass.) 315; 289. Gentry v. State, 24 Tex. App. 80. 28— Andrews v. State, 21 Fla. 598. Where there is no evidence of a 29 — Hogan v. State, 46 Miss. 274. § 345] Ceedibiljty and Probative Foece of Evidence. 761 lieve that, admissions criminating in nature amount to a confession. 30 It is improper to charge that, " 'the fact that the person who is charged with the commission of a crime says noth- , ing, but remains silent, is a circumstance to which the jury may look as a confession of guilt.' It is often a circum- stance, the significance of which may be misunderstood, and it ought, therefore, always to be questioned very care- fully, if not distrustingly, by a jury. ' ' 31 § 345. Same^-What instructions may properly be given. The court may instruct that verbal statements of de- fendant may be considered with the other facts in the case; 32 and a charge that the jury could believe the con- fession, or any part thereof, as true or false, has been ap- proved. 33 So it has been held that the court may properly charge that evidence of admissions may be subject to much imperfection and mistake, and that the jury may, if they think proper, give great, little, or no weight at all to such admissions. 34 The following charge has also been approved: "When the admissions or confessions of a party are introduced in evidence by the state, then the whole of the admissions or confessions are to be taken together, and the state is bound by them unless they are shown to be untrue by the evi- dence. Such admissions or confessions are to be taken into consideration by the jury as evidence, in connection with all other facts and circumstances of the case." 35 So it has been held proper to charge that, in considering what the defendant said, "the jury must consider it all together. The defendant is entitled to the benefit of what he said for himself, if true, as the state is to anything he said against 30 — Michaels v. People, 208 111. 33— State v. Gunter, 30 La. Ann. 603. 537. 31 — Campbell v. State, 55 Ala. 80. 34 — Koerner v. State, 98 Ind. 20. 32 — State v. Davis, 226 Mo. 493; 35— Pharr v. State, 7 Tex. App. State v. Tobie, 141 Mo. 547. 478. 762 Instbuctions to Jueies. [§345 himself in any conversation proved by the state. What he said against himself in any conversation the law presumes to be true, because against himself; but what he said for himself the jury are not bound to believe, because said in a conversation proved by the state. They may .believe or disbelieve it, as it is shown to be true or false by all the evidence in the case. ' ' 36 An instruction that all statements by a witness^ who was also indicted as an. accomplice, made to other witnesses, not in the presence of defendant, were admitted, solely upon the issue of the guilt or innocence of the accomplice, and cannot be considered for any other purpose, if for any pur- pose, is not erroneous, in that it assumes as a fact proven that the accomplice did make statements to other wit- nesses, which tended to establish the guilt or innocence of said accomplice. 37 § 346. Admissions and confessions in criminal cases to be received and weighed with caution. The better rule is that it is not necessary to give a cau- tionary instruction against the statements of a defendant, 38 and in many jurisdictions it is held improper for the court to instruct the jury that evidence of alleged admissions and confessions should be received with caution, or to other- wise disparage such evidence. 39 According to the views of some courts, such an instruction invades the province of a jury as to matters of which jurors are the exclusive judges, 40 and it has been said that an instruction that ' ' evi- dence of oral admissions of a defendant ought to be viewed 36— State v. Peak, 85 Mo. 190; 38— State v. SmitK, 250 Mo. 350. State v. Vansant, 80 Mo. 67; State 39— Koerner v. State, 98 Ind. 7; v. Curtis, 70 Mo. 594. See also, Garfield v. State, 74 Ind. 60; Com. Jackson v. People, 18 111. 269, where v. Galligan, 113 Mass. 202; Collins an instruction almost identical with v. State, 20 Tex. App. 400; Thuston the above was approved, and Hed- v. State, 18 Tex. App. 26; White v. dendorf v. State, 85 Neb. 747. Territory, 3 Wash. T. 397, 19 Pac. 37. 37_Wilkerson v. State (Tex; Cr. 40— Garfield v. ^gtate, 74 Ind. 63,' App.), 57 S. W. 956. Collins v. State, 20 Tex. App. 400. § 346] Credibility and Probative Force of Evidence. 763 with caution," if not in violation of the constitutional in- junction against charging on matters of fact, is one that may be properly refused as a mere commonplace. 41 It has also been said that the processes of reasoning by which a conclusion is reached, rarely, if ever, should be de- livered in the form of instructions; that the teachings of ex- perience on questions of fact are not doctrines of law, which may be announced as such from the bench; that they may well enter into the arguments of attorneys", one side claim- ing that experience .teaches one thing, and the other asserting another conclusion; but the jury, not the judge, is the arbiter of such contentions, as of all questions of fact. 42 Accordingly, it has been held proper to refuse an instruction that "the confessions of a defendant are to.be received with caution," 43 or that "it is not uncommon for different witnesses of the same conversation to give pre- cisely opposite accounts of it;" 44 and an instruction that it is the duty of the jury "to view with distrust evidence of the oral admissions of defendant * * * is at vari- ance with the Code provision which declares that evidence of the oral admissions of a party is to be viewed with cau- tion." 45 Where an instruction is given at defendant's request, cautioning the jury against verbal admissions and statements, though such instruction is in disregard of "the provision of the constitution that 'judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law,' " the defendant cannot afterwards ask for other similar instructions. 46 According to other decisions, however, it is not improper for the court to caution the jury against placing too much reliance upon this kind of evidence. 47 And one decision 41— People v. Raber, 168 Cal. 316, 45— People v. Sternberg, 111 Cal. 143 Pac. 317. 11, 43 Pac. 201. 42 — Garfield v. State, 74 Ind. 63. 46— People v. Bodley, 131 Cal. 240, 43— Collins v. State, 20 Tex. App. 63 Pae. 351. 420. 47— Hunter v. State, 43 6a. 483; 44— Garfield v. State, 74 Ind. 60. State v. Shelledy, 8 Iowa 477; 764 Instructions to Juries. [ § 346 holds that the trial judge "may so charge, or not, in the exercise of a wise discretion, to be guided by the circum- stances of each particular case. " 4S So it has been held , that a failure to include in the charge as to confessions, the qualification that "a confession alone, uncorroborated by other evidence, will not justify a, conviction, " will render the charge erroneous. 49 It is error to refuse to instruct that, if the jury "believe from the evidence that the pris- oner made any confessions or admissions of guilt, such con- fessions or admissions are to be received by them with great caution, and, unless supported by other proof in the case, are not sufficient to convict. ' ' 50 When verbal state- ments of a defendant are casually made in the course of an ordinary conversation and form part of the evidence, and , it appears that such statements were made on occasions more or less remote from the. time when they were dis- closed, a cautionary instruction should be given as a corol- lary to an instruction as to the weight of the verbal state- ments. 61 §347. Same — Instructions giving undue weight to evidence. It is error to give instructions as to this kind of evidence when the tendency is to cause the jury to attach undue weight to it. Thus it is improper to charge : That ? if the jury believe that defendant confessed he. was guilty, they may find him guilty as charged; B2 that the "admissions of the defendant against himself are to be taken as true;" 5 * 3 "that the voluntary confessions of a defendant are evi- dence against him, and are to be regarded as the strongest Haynes v. State (Miss.), 27 So. 601; defendant replied that he did riot State v. Hardee, 83 N. C. 619. know what he was doing. 48— State v. Hardee, 83 N. C. 619. 51 — State v. Smith, 250 Mo. 350. 49— Lucas v. State, 110 Ga. 756. 52— Long v. State, 1 Tex. App. 50— Haynes v. Btati (Miss.), 27 466. So. 601. In this ease, the evidence 53 — Grant- v. State, 2 Tex. App. relied on as an admission was that, 164. when asked why he killed deceased, § 348] Cbedibility and Pbobativb Fobce of Evidence. 765 proof in the law;" 54 that a confession is of the most weighty nature in law; 55 "that the confessions of the accused of his guilt, when confirmed by circumstances, be- come the highest evidence of his guilt;" 56 or that "confes- sions made by a prisoner charged with an offense, when made voluntarily, and not obtained by force, fraud, or threats, are regarded by the law as the highest and most satisfactory character of proof. ' ' 57 § 348. Testimony of parties and interested witnesses. While there are some states where the rule is different, 58 the weight of authority is to the effect that the court may properly instruct the jury that they may consider the in- terest of the person testifying, whether as a party or witness, in determining his credibility. 59 In fact, most 54 — Morrison v. State, 41 Tex. 520. See also, Harris v. State, 1 Hex. App. 79. 55 — Ledbetter v. State, 21 Tex. App. 344. 56 — Hogs'ett v. State, 40 Miss. 522. 57— Brown v. State, 32 Miss. 433. 58— See § 349, post. 59 — Arkansas. Lancashire Ins. Co. v. Stanley, 70 Ark. 1; Hamilton v. State, 62 Ark. 543; Felker v.. State, 54 Ark. 489. California. People v. Knapp, 71 Cal. 1, 11 Pae. 793. Georgia. * Davis v. Central R. Co., 60 Ga. 329. Illinois. Lauth v. Chicago Union Traction Co., 244 111. 244, rev'g 146 111. App. 584; Chicago & A. B. Co. v. Anderson, 166 111. 572; Siebert v. People, 143 111. 571; Bressler v. Peo-. pie, 117 111. 439; Bider v. People, 110 111. 11; Bulliner v. People, 95 111. 407; Croupp v. Garfield Park Sani- tarium, 147 111. App. 7. Indiana. Randall v. State, 132 Ind. 539; Lake Erie & W. By. Co. v. Parker, 94 Ind. 91; Wabash R. Co. v. Biddle, 27 Ind. App. 161; Young v. Gentis, 7 Ind. App. 199; Good- wine v. State, 5 Ind. App. 63. Kansas. State v. Bohan, 19 Kan. 35. Michigan. McDonell v. Rifle Boom Co., 71 Mich.' 61. Missouri. Quinn v. Metropolitan St. B. Co., 218 Mo. 545; State v. Wells, 111 Mo. 533; State v. Pat- terson, 98 Mo. 283; State v. Miller, 93 Mo. 263; State v. Wisdom, 84 Mo. 190; State v. McGinnis, 76 Mo. 326; State v. Zorn, 71 Mo. 415; State v. Maguire, 69 Mo. 197; State v. Morse, 66 Mo. App. 303; State v. Parker, 39 Mo. App. 116; State v. Kelly, 9 Mo. App. 512, afl'd 73 Mo. 608. Montana. State v. Metcalf, 17 Mont. 417, 43 Pac. 182. Nebraska. Clary v. State, 61 Neb. 688; City of Harvard v. Crouch, 47 Neb. 133; Dixon v. State, 46 Neb. 298; Barmby v. Wolfe, 44 Neb. 77; Clark v. State, 32 Neb. 246. New Mexico. Faulkner v. Terri- 766 Instktjctions to Jueies. [§348 decisions go further than this and hold that it is proper for the court to instruct "that, in weighing and determining the truth of defendant's testimony, they should take into consideration the interest he must necessarily have in the result of the trial. ' ' 60 This rule is applicable whether the person testifying is the defendant in a criminal suit; 61 or any party to a civil suit; 62 or any witness either in a civil suit or a criminal prosecution other than the parties thereto, 63 as, for instance, the wife of the defendant in a criminal prosecution; e4 or of tory, 6 N. M. 464, 30 Pac. 905; Ter- ritory v. Bomine, 2 N. M. 114. Washington. State v. McCann, 16 Wash. 249, 47 Pae. 443, 49 Pae. 216; State v. Carey, 15 Wash. 549, 46 Pae. 1050; State v. Nordstrom, 7 Wash. 506, 35 Pae. 382; Klepseh v. Donald, 4 Wash. 436, 31 Am. St. Rep. 936, 30 Pac. 991. Wisconsin. See Novak v. Nord- berg Mfg. Co., 141 Wis. 298. Wyoming. Haines v. Territory, 3 Wyo. 167, 13 Pac. 8. 60 — California. People v. Knapp, 71 Cal. 1, 11 Pac. 793; People v. O 'Neal, 67 Cal. 378, 7 Pac. 790. Colorado. Salazar v. Taylor, 18 Colo. 538, 33 Pac. 369. Connecticut. State v v. Fiske, 63 Conn. 392. Georgia. Bogers v. King, 12 6a. 229. n Illinois. West Chicago St. B. Co. v. Bstep, 162 111. 130; Johnson v. People, 140 111. 350. Iowa. State v. Viers, 82 Iowa 397; Hatfield v. Chicago, B. I. & P. By. Co., 61 Iowa 440. Michigan. People v. Calvin, 60 Mich. 114; People, v. Herrick, 59 Mich. 563. Minnesota. State v. Hogard, la Minn. 293 (Gil. 191). Missouri. State v. Lingle, 128 Mo. 537; State v. Benfrow, 111 Mo. 589; State v. Turner, 110 Mo. 196; State v. Young, 105 Mo. 634; State v. Morrison, 104 Mo. 642; State v. Brown, 104 Mo. 374; State v. Young, 99 Mo. 666; State v. Cook, 84 Mo. 40. Nebraska. Johnson v. State, 34 Neb. 257; Murphy v. State, 15 Neb. 389; St. Louis v. State, 8 Neb. 418. Nevada. State v. Streeter, 20 Nev. 403, 22 Pac. 758; State v. Slingerland, 19 Nev. 135, 7 Pac. 280; State v. Hymer, 15 Nev- 51» Contra, Wabash B. Co. v. Biddle, 27 Ind. App. 161; State v. Eairlamb, 121 Mo. 139. 61— People v. Knapp, 71 Cal. 1, 11 Pac. 793; People v. Cronin, 34 Cal. 192; State v. Fisk, 63 Conn. 392; State .v. Byan, 113 Iowa 536; State v. Sterrett, 71 Iowa 386; State v. Miller, 162 Mo. 253, 85 Am. St. Eep. 498; State v. Mounce, 106 Mo. 226. 62— West Chicago St. B. Co. v. Estep, 162 111. 130. 63— Salazar v. Taylor, 18 Colo. 538, 33 Pae. 369; People v. Herrick, 59 Mich. 563; State v. Hogard,' 12 Minn. 293 (Gil. 191); State v. Lingle, 128 Mo. 528. 64— State v. Napper, 141 Mo. 401; § 349] Cbedibility and Pbobative Fobcb of Evidence. 767 any other person related to him; 65 or of a prosecuting wit- ness in a criminal case. 60 § 349. Same — Rule in Alabama, Indiana, Kentucky, Mis- sissippi and Texas. In Alabama, it has been held that the court may properly instruct the jury that they may consider the interest of the person testifying, in determining his credibility, 67 but it is error to instruct that the jury "must" consider the fact that the defendant is interested. 68 In Indiana, the decisions on this question are very con- flicting. In a number of cases it has been held that an in- struction that the jury "should" consider the interest of parties and other witnesses related to them in testing their credibility is an invasion of the province of the jury, be- cause it indicates, as a matter of law, that the testimony of such witnesses was entitled to less weight than that of others. 69 But other decisions hold to the contrary; 70 and it has been held that the use of "should" for "may" does not invade the province of the jury. 71 The following in- struction has been approved: "In determining the weight to be given the testimony of the different witnesses, you should take into account the interest or want of interest they have in the case, their manner on the .stand," etc. 72 In sustaining a similar instruction, the court considered State v. Lingle, 128 Mo. 528; State v. State, 105 Ind. 118; Dodd v. v. Strattman, 100 Mo. 540; State v. Moore, 91 Ind. 522; Woollen v. Whit- Young, 99 Mo. 666. acre, 91 Ind. 502. 65— State v. Hogard, 12 Minn. 293 70— Pittsburg, C, C. & St. L. By. (Gil. 191); State v. Fisher, 162 Mo. Co. v. Chappell, — Ind. — , 106 N. 169. B. 403; Deal v. State, 140 Ind. 66— State v. Hogard, 12 Minn. 293 354; Anderson v. State, 104 Ind. (Gil. 191). 467. ■67— Norris v. State, 87 Ala. 85; 71— Pittsburg, C, C. & St. L. By. Descrippo v. State, 8 Ala. App. 85. Co. v. Chappell, — Ind. • — , 106 N. 68— Descrippo v. State, 8 Ala. E. 403. App. 85. 72 — Anderson v. State, 104 Ind. 69— Lynch v. Bates, 139 Ind. 210; 467. Bird v. State, 107 Ind. 154; TJnruh 768 Instructions to Juries. [§ 349 that the use of the word "should" "does not tell them [the jury] how much, if any, that interest ought to detract from their testimony, but leaves that wholly to the exclusive determination of the jury. To consider evidence is one thing, and to determine its weight and force is another and quite a different thing. If the court may not tell the jury that it is a legal obligation resting on them, under their oaths, to consider all the evidence adduced before them, then it follows, as a logical sequence, that they are not bound to give any consideration whatever to the evidence introduced before them under the permission of the court. ' ' 7S In Kentucky, it has been held that the court has no right to direct attention to the interest of witnesses in the result or character of statements made by them, the jury being the sole judges of the weight of the evidence, and of the credibility of the witnesses. 74 In Mississippi, a trial court has no right to instruct a jury that they may take into consideration the interest of the defendant in determining his credibility, since such an instruction bears directly on the weight of the evidence and constitutes reversible error. 75 s Accordingly, it has been held erroneous to instruct that, "in weighing the defendant's testimony, they [the jury] should consider the interest he has in the result, and they may disregard it altogether;" 76 or that, "if the jury be- lieve from the evidence that any witness who has testified in this case has any feeling or interest in the result of this trial, then the jury should consider such feeling or interest in connection with all the evidence in the case in determin- ing how'far, if at all, they will believe such witness or con- sider such testimony. " 77 In one of these decisions it was 73— Deal v. State, 140 Ind. 368. 76— Buckley v. State, 62 Miss. 705. 74 — Wright v. Com., 85 Ky. 123. 77— Woods v. State, 67 Miss. 575. 75 — Smith v. State, 90 Miss. Ill, To the same effect, see Townsend v. 122 Am. St. Rep. 313; Woods -v. State (Miss.), 12 So. 209. State, 67 Miss. 575. § 349] Credibility and Probative Foece of Evidence. 769 said: "A defendant has the right to submit his testimony to the jury to be judged of by it, uninfluenced by any sug- gestions of its probable falsity, or an authorization to the jury to throw it aside as unworthy of belief because of the strong temptation to the defendant to swear falsely. There is little danger that juries will be unduly influenced by the testimony of defendants in criminal' cases. They do not need any cautioning against too ready credence to the ex- culpation furnished by one on trial for a felony. The accused should be allowed to exercise his right to testify, unimpaired by any suggestions calculated to detract from its value in the estimation of the jury. ' ' 78 In Texas, the decisions in civil cases are unanimous to the effect that it is improper to tell the jury that they may or should consider the interest of the witnesses in the mat- ter in controversy in determining their credibility. 79 In criminal cases, there seems to be some diversity of opinion, and, while there are some eases in which instructions of this nature have been approved, 80 later decisions overrule the former cases and hold that it is erroneous to give such an instruction. 81 It is held that the same rule applies whether the witness be pointed out and named in the charge, or whether the charge -does not in terms point out the witness by name, but states conditions that can only apply to a certain witness or witnesses. 82 It is proper to refuse a 'charge that, in weighing the testimony of defend- 78— Buckley v. State, 62 Miss. 705. rell v. State, 37 Tex. Cr. App. 612; 79— Willis v. Whitsitt, 67 Tex. Muely v. State, 31 Tex. Cr. App. 155. 673; Kellogg v. MoCabe, 14 Tex. 82— Harrell v. State, 37 Tex. Cr. Civ. App. 598; Eddy v'. Lowry (Tex. App. 612, criticising Muely v. State, Civ. App.), 24 S. W. 1076. 31 Tex. Cr. App, 155, where it was 80 — Brown v. State, 2 Tex. App. held improper to instruct that, "in 115; Cockerell v. State, 32 Tex. Cr. determining the credibility of the App. 585; Adam v. State (Tex. Cr. defendant, who testifies in his own App.), 20 S. W. 548. behalf, his interest in the issues in- 81 — Shields v. State, 39 Tex. Cr. volved is to be considered. ' ' In this App. 13; Oliver v. State (Tex. Cr. case the court intimated that an in- App.), 42 S. W. 554; Penny v. State struction, generally, that the jury (Tex. Cr. App.), 42 S. W. 297; Har- might consider the interest of the BlashfleldVol.I— 49 770 Instkuctions to Jut&es. [§ 349 ant, the jury should treat him as any other witness, judging his appearance, demeanor, etc. 83 § 350. Sufficiency of instructions as to credibility of party and weight of evidence in civil cases. It is proper to direct the jury to consider a plaintiff's interest in the suit, 84 and the jury may be instructed to give defendant's "testimony such weight, in- connection with the other evidence as you think it entitled to, and no more. ' ' 8B Where the right to recover is based almost entirely upon the testimony of plaintiff, the defendant has a right to have the jury told specifically that they may con- sider the interest of any of the witnesses in the result of the suit, and it is error to refuse an instruction that "the jury are the sole judges of the credibility of the witnesses and the weight to be given to their testimony, and, in pass- ing upon the testimony of any witness, the jury have a right to take into consideration the interest any such wit- ness may have in the result of this trial, the manner of testifying, and the former life or history any such witness may have given of him or herself in this case. " 80 To direct the jury's attention to the interest of a defendant in a bastardy proceeding, without referring to the plaintiff's interest therein, is not error. 87 But in an action for rent, where both parties testified, an instruction that while the law makes the plaintiff a competent witness, the jury have witnesses in determining their credi- 111. App. 286; Scanlan v. Chicago bility, would not have been improper. Union Traction Co., 127 111. App. The instruction given was con- 406; Chicago Union Traction Co. v. demned on the ground that it singled Hansen, 125 111. App. 153. But see, out defendant for special comment. Pennsylvania Co. v. Burton, 130 111. ' 83— Clark v. State (Tex. Cr. App.), App. 573. 59 S. W. 887. 85— Meyer v. Blakemore, 54 Miss, 84 — Chicago & E. I. E. Co. v. 570. Burridge, 211 111. 9, rev'g 107 111. 86 — Lancashire Ins. Co. v. Stanley, App. 23; Mansfield v. Chicago, B. & 70 Ark. 1. Q. R. Co., 132 111. App. 552; Larsen 87— People v. Bibb, 155 111. App, v. Chicago Union Traction Co., 131 371. § 350] Credibility and Probative Foece of Evidence. 771 a right to consider his situation and interest in the result and the circumstances which surround him, and give to his testimony only such weight as in their judgment it is fairly entitled to, is erroneous as singling out the testimony of one party. 88 A charge that the jury are not bound to believe a defendant's evidence or treat it as that of other wit- nesses has been held erroneous, 89 and it is error to instruct : "That the weight to be given to the testimony of the plain- tiff and defendant, as witnesses, depends upon the interest each may have in the result of the suit;" 90 that, if the plaintiff swears one way and defendant another, the jury should leave the parties as it finds them; 91 that the testi- mony of the party in interest should "be disregarded, un- less corroborated by other witnesses, or by documentary evidence ; " 92 that ' ' the evidence of parties to the action, and of those related to them, * * * is not entitled to as much weight as the evidence of disinterested wit- nesses ; " 93 or that, ' ' in weighing the evidence, the jury are to remember that the plaintiff is the most interested party in the controversy. They are to receive his evidence, there- fore, with caution, as being that of a partial witness, and they are empowered to reject any evidence which is uncor- roborated, even though it be uncontradicted." 94 It has been held proper to refuse an instruction which is not clear in its statement of the legal principle, and which 88 — Hartshorn v. Hartshorn, 179 from bias or prejudice," was not 111. App. 421. ground for reversal where there was 89 — First Nat. Bank of Herrin v. nothing to show that it was more Sobosky, 186 111. App. 545. prejudicial to one party than the 90 — Dodd v. Moore, 91 Ind. 522. other. Compare Hess v. Lowrey, 122 Ind. 91 — McLean v. Clark, 47. Ga. 24. 234, where it was held that an in- 92 — Prowattain v. Tindall, 80 Pa. struction "that the credit and St. 297. weight that should be attached to 93 — Nelson v. Vorce, 55 Ind. 455. the testimony of the witness depends 94 — Coloritype Co. v. Williams, 24 upon his disinterestedness in the re- C. C. A. 163, 78 Fed. 450. suit of the suit, and his freedom 772 Instructions to Juries. [§ 350 impresses "the jury that they must consider any interest, ' either financial or otherwise, ' that each witness may have in the event of the suit. ' ' 95 Where a delay in bringing suit is most unusual, and the parties are the only witnesses, it is proper to instruct that, as bearing upon the credibility of the witnesses and probabilities of the case, the jury may take into consideration the delay of the plaintiffs in bringing the suit. 96 § 351. Same — Criminal cases. In regard to the testimony of the accused in a criminal prosecution, the court may properly charge that the accused is by law made a competent witness in his own behalf, and that the jury are bound to consider his testimony. 97 It is proper to charge that the jury must consider the de- fendant's testimony, 98 and that the jury have no right to disregard defendant's testimony merely because he is the defendant. 99 The jury may also be instructed to give de- fendant's "testimony such weight, in connection with the other evidence in the case, as you think it entitled to, and no more;" 1 that, "if convincing, and carrying with it a 95 — City of Lincoln v. Beckman, ing the credit to be given to his tes- 23 Neb. 677. timony; and the jury are further in- 96 — Walker v. Harvey, 47 C. C. structed that they are the sole judges A. 655, 108 Fed. 741. of the credibility of the witnesses 97 — Eider v. People, 110 111. 13; and the weight of testimony, and, if Creed v. People, 81 111. 569; State they believe that any witness has in- v. Sterrett, 71 Iowa 386. See State tentionally'testified falsely as to any v. Miller, 162 Mo. 253, 85 Am. St. material fact in the case, they may Rep. 498; State v. Adair, 160 Mo. disregard the whole or any part of 391; State v. Miller, 159 Mo. 113. ^ testim of such witnesa) „_ 98— State v. Sterrett, 71 Iowa 386. . . ... ,, . ' , ' is erroneous, as telling the jury that 99 — Creed v. People, 81 111. 565. ° . J „ t oi. i. ion me thev mav discard the testimony of Compare Lang v. State, 42 Fla. 595. , , . . , ,, ,, , „,, , » , . accused on some ground. The nurv An instruction that "the defendant & J ' is a competent witness in his own should not be lnvlted to discard the behalf, and his evidence should not testimony of defendant, but to weigh be discarded by the jury for the Jt - state v - Miller > 162 ¥°- 253, 85 reason alone that he is the defend- Am - st - Ee P- 498 5 s *ate v. Austin, ant on trial, but such fact may be 113 Mo. 543. considered by the jury in determin- 1— Solander v. People, 2 Colo. 48; § 351] CREDIBILITY AND PROBATIVE FoECE OF EVIDENCE. 773 belief in its truth," the jury may act upon it, and, if not, they have a right to reject it; 2 that the jury are "to con- sider the testimony of the defendant in connection with all the other evidence," but that, if they are not satisfied that it is true, they may disregard it; 3 that the plaintiff's testi- mony should be judged by the same tests as are applied to other witnesses, 4 or that the jury are under no obligation to believe it if they consider it unreliable ; 5 and an instruc- tion calling the jury's attention to attendant circumstances which might bias testimony but leaving the jury to judge what weight and effect they should give it, is proper. 6 The jury may also be instructed that, while they should not dis- regard the testimony of the defendant, they should con- sider his interest; 7 or that "the defendant is competent to testify as a witness in this case, but the fact that he is the defendant may be shown for the purpose of affecting his credibility. ' ' 8 So, also, an instruction that "the defendant is a competent witness in his own behalf, but the fact that he is a witness testifying in his own behalf may be consid- ered by the jury in determining the credibility of his testi- mony;" 9 or that "the defendant has a right to be a witness in his own behalf, yet, in weighing his evidence, and the weight to be given thereto, they have a right to take into consideration the interest that he has at stake in this case, ' ' is proper. 10 Similarly instructions that, "in case of the de- fendant, you have a right to take into consideration the Barber v. State, 13 Ma. 675; State v. 6— State v. Fogleman, 164 N. C. Sterrett, 71 Iowa 386. 458. 2— People v. O 'Neal, ,67 Cal. 378, 7— State v. Ryan, 113 Iowa 536. 7 Pae. 790; People v. Morrow, 60 8 — State v. Zorn, 71 Mo. 415. Cal. 147; People v. Cronin, 34 Cal. 9 — State v. Maguire, 69 Mo. 197. 195. See also, State v. Wisdom, 84 Mo. 3 — Lewis v. State', 88 Ala. 11. 190, in which an instruction almost 4 — Dickerson v. Henrietta Coal identical with the one set out above Co., 158 111. App. 454. was approved. 5— Creed v. People, 81 111. 569; 10— State v. McGinnis, 76 Mo. 326. State v. Elliott, 90 Mo. 350. 774 Instructions to Jtjkies. [§ 35J. great interest he has in your verdict;" 11 that "the fact that such witness is specially interested in the result of the action or of your deliberations may be taken into account by you;" 12 that "it will be proper for you to consider the fact that he is the defendant, and that greatest possible temptation is presented to him to testify in his own favor, if he is really guilty;" 13 or "that, in determining the weight and credibility to be attached to the testimony of defendants, they should consider the fact that they are the defendants," have been approved. 14 The* principle is further illustrated by the following ex- cerpts from instructions which have met with the approval of the courts: "In weighing his [the defendant's] testi- mony, they [the jury] should consider his position, the manner in which he might be affected by the verdict, and the very grave interest he must feel in it, and whether this position and interest might not affect his credibility and color his testimony, but that they should weigh the testi- mony fairly, and give it such credit as they thought it ought to receive;" 15 that the jury should "consider his [defendant's] relation and situation under which he gives his testimony, the consequences to him relating .from the result of this trial, and all the inducements and temptations which would ordinarily influence a person in his situation. * * * If convincing and carrying with it a belief in its truth, act upon it; if not, you have a right to reject it;" 16 that, "above all, you are to take into consideration the fact that he [defendant] is the accused in the case; and, taking 11 — State v. Bohan, 19 Kan. 35. Instate v. Brown, 104 Mo. 374. See also, People v. Dumas, 161 15 — People v. Knapp, 71 Cal. 1, 11 Mieh. 45. Pac. 793. 12 — Faulkner v. Territory, 6 N. M. 16— People v. Cronin, 34 Cal. 192. 464, 30 Pac. 905. See also, People v. Wheeler, 65 Cal. 13 — Territory v. Bomine, 2 N. M. 77, 2 Pao. 892; People v. Morrow, 114. This case was decided before 60 Cal. 142; State v. Streeter, 20 the statutory provision against Nev. 403, 22 Pae. 758, in which in- charging on the weight of the evi- structions substantially the same dence was passed. were upheld. § 351] Cbedibility and Peobative Fokce of Evidence. 775 those facts into consideration, you are to give to Ms state- ments in court, or any statements made by him out of court, such effect and such force as you think they justly should have;" 17 or that "the defendant has offered himself as a witness on his own behalf in this trial, and, in considering the weight and effect to be given his evidence, in addition to. noticing his manner and the probability of his state- ments, taken in connection with the evidence in the cause, you should consider his relation and situation under which he gives his testimony, the consequences to him relating from the result of this trial, and all the inducements and temptations which would ordinarily influence a person in his situation." 18 The jury may be instructed that, in de- termining the credit to be given to the testimony of defend- ants, "you may consider the very great interest which they must have and feel in the result of this case, and the effect which a verdict would have upon them, and determine to what extent, if at all, such interest may color their testi- mony or affect their credibility. If their statements be convincing, and carry with them belief in their truth, you have the right to receive and act upon them; if not, you have a right to reject them." 19 Where the defendant testifies in his own behalf, he is- entitled, on request, to an instruc- tion ' ' that the fact that he is the defendant is not of itself sufficient to impeach or discredit his testimony," especially where the requested instruction contains the further state- ment that the jury may take into consideration the fact that the witness is the accused. 20 And it has been held error to refuse defendant's request for an instruction that 17— State v. Fiske, 63 Conn. 392. Missouri. State v. Adair, 160 Mo. 18— State v. Hymer, 15 Nev. 51. 391; State v. Miller, 159 Mo. 113. 19 — Alabama. Norris v. State, 87 Montana. State v. Metealf, 17 Ala. 85. Mont. 417, 43 Pae. 182. Arizona. Halderman v. Territory, 20 — State v. Metealf, 17 Mont. 7 Ariz. 120, 60 Pae. 876. 417, 43 Pae. 182. Compare Lang v. Illinois. Siebert v. People, 143 111. State, 42 Pla. 595. 571; Bressler v. People, 117 111. 439; Eider v. People, 110 111. 1. 776 Instructions to Jueies. [§ 351 the jury "have the right to disbelieve the evidence of any- interested witness upon no other ground than the fact of interest," and that they "have the right to disbelieve the evidence of any noninterested witness if his evidence ap- pears impossible or improbable. ' ' 21 It has been held, however, that the court need not, of its own motion, instruct the jury as to the credit to be given to the testimony of defendant in a criminal case, where he takes the stand in his own behalf, and gives testimony tend- ing to exonerate himself. 22 On the other hand, it has been held that an instruction that the jury "must give it [the tes- timony of defendant] the same consideration they would any other witness ' ' should be refused. 23 So, a similar instruction that defendant's testimony is to be received and weighed as that of any other witness, and that his statement of any fact of his own which the jury believe to be wrong should not be considered for the purpose of punishing him for the crime charged, was considered too broad in not being lim- ited to any act not connected with the crime charged. In one decision it was held proper to charge that "they [the accused] do not stand in the same position as a witness who is entirely disinterested. The time has not yet come when men who confess themselves, guilty of crime .are to stand alongside of and made equal to men who have lived upright and honest lives; but the value of their testimony is to be entirely estimated by you [the jury];" but the court said that it was "just on the verge of error." 24 In a prosecution for maintaining a nuisance, the refusal to instruct that the testimony of defendants should be 21 — Hunter v. State, 29 Fla. 486. weighed like that of any other, 22 — People v. Eodundo, 44 Cal.' though the state succeeded in hav- 538. ing his answers to questions ex- ' 23 — McKee v. State, 82 Ala. 32; eluded, and the state was refused People v. Calvin, 60 Mich. 114. permission to cross-examine. State Where defendant offers himself as a v. Ulsemer, 24 Wash. 657, 64 Pac witness, he stands the same as any 800. other witness, and the court may 24 — People v. Perry, 84 Cal. 31, instruct that his testimony should be 24 Pac. 33. § 351] Cbedibility and Peobative Foece op Evidence. 777 judged by the same rules , as other witnesses is error. 25 Where no question is made but that the defendant has an absolute right to testify in his own behalf, an instruction that, "under the statute of this state, a defendant in a criminal action is permitted to be a witness in his own be- half, and the jury are to be exclusive judges of the weight and credibility to be given his testimony," is not erroneous for the use of the word "permitted." 26 Instructions that the interest of defendants in a criminal case is a proper matter for the consideration of the jury have been held not erroneous as singling out such witnesses for special comment. 27 But an instruction which singles out the defendant alone and calls the jury's attention to his interest or to some other circumstance affecting his cred- ibility ought not to be given unless the jury is told that the same test applies to other witnesses. 28 Where an accused is the only witness testifying in his own behalf, it is fatal error to give charges authorizing the jury to consider the interest of the witnesses and the fact that they had sworn falsely as to some material fact, as such charges are pointed directly at the defendant. 29 An instruc- tion as to the credibility of witnesses referring to ' ' the posi- tion and interest of such defendant" is objectionable as call- ing particular attention to the testimony of the defendant, the danger being that the jury may possibly infer that the court intends to discredit the testimony of the defendant. 30 In instructing the jury that they may consider the inter- est of a defendant as affecting his credibility, it is errone- ous to give this statement undue weight by repetition. 31 An instruction as to the interest of a plaintiff may be re- 25— People v. Archibald, 258 111. 28— People v. Harrison, 261 111. 383. 517. 26— State v. Porter, 32 Ore. 135, 29— Gaines v. State, — Miss. — , 49 Pae. 964. 48 So. 182. 27 — Chicago & A. E. Co. v. Ander- 30— People v. Bartol, 24 Cal. App. son, 166 111. 572; Haines v. Terri- 659, 142,Pac. 510. tory, 3 Wyo. 167, 13 Pac. 8. 31— Clark v. State, 32 Neb. 246'. 778 Instructions to Juries. [§351 fused where the facts are not in dispute, 32 and an instruc- tion that the jury have no right to disregard the defend- ant's testimony merely because he is the defendant is properly refused, where the court has given full instruc- tions as to how the jury should weigh the testimony of witnesses generally. 33 An instruction that the jury need not receive testi- mony of a defendant blindly, and to give it only such weight as they believe it entitled to is erroneous, 34 and an instruction that the jury "must bear in mind the tendency on the part of the guilty, when accused of crime, to fabricate sqme story or stories which they think may effect their acquittal," is erroneous, and prejudicial to the defendant. 35 It is improper to instruct that the jury may re- member that a defendant testifying is interested in the result of the prosecution, and that they may, if they think that fact sufficient, entirely disregard his testimony if it is in conflict with the other evidence, as such instruc- tion authorizes the jury to disregard the testimony, though they may believe it; 36 or that, where a "defendant is a witness in his own behalf, * * * the jury * * * may believe or disbelieve" his testimony, according as it is or is not corroborated. 37 Where an instruction was asked, "that, under the law, the evidence of the defendants is just as proper for your consideration in determining their guilt or innocence as the evidence of other wit- nesses," it was held proper to modify "the same by strik- ing out the words, 'as the evidence of other witnesses,' and adding, 'and should receive such weight as you think it entitled to. ' " 38 So, a request for an instruction that the jury should weigh, examine, and test defendant's testi- 32— Glaioh v. Hogan Envelope Co., 35— State v. Hoy, 83 Minn. 286. 162 111. App. 261. 36 — Allen v. State, 87 Ala. 107. 33 — Lang 'v. State, 42 Fla. 595. 37 — State v. Patterson, 98 Mo. 283. 34 — People v. Barkas, 255 111. 516. 38— Bulliner v. People, 95 111. 407. §351] Credibility and Peobativb Fokce of Evidence. 779 mony, "the same as it does the testimony of all the other witnesses in the case," was properly modified by striking therefrom the words quoted. 39 An instruction that defendant's statements of his innocence of the charge, which were brought out by the state on the examination of the state's witnesses, are evidence to be considered by them as any other evidence in the case, is objectionable, as importing to the jury that they were bound, as matter of law, to give to the defendant's declarations of innocence the same weight they give to other evidence. 40 Where the only evi- dence of the character of the defendant is that he was a quiet and peaceable man, it is proper to refuse an instruc- tion that the jury "may look to the fact, if it be a fact, that defendant is a man of good character, in determining what weight they will give to the testimony of the defendant." 41 The court does not err in failing to instruct the jury that evidence of defendant's bad character went only to his credibility as a witness, and was not evidence of his guilt. "Where no such evidence is adduced, and even if there is such evidence, the court cannot be convicted of error in failing to instruct with respect to it, in the absence of a request to do so by defendant, or of its attention being called in time to its failure to instruct upon the law of the case. 42 An instruction that the jury "shall not capriciously reject the testimony of the defendant simply because he is interested, but, unless the jury have good reason to believe, under all the circumstances, that the defendant has sworn falsely, then, the jury should believe his testi- mony, and consider it along with all other testimony in the case in making up their verdict," is faulty in that it is 39— People v. Cowgill, 93 Cal. 596, 41— Bodine v. State, 129 Ala. 106. 29 Pac. 228. See also, Clark v. State 42 — State v.- Purgerson, 162 Mo. (Tex. Cr. App.), 59 S. W. 887. 668. 40— Childress v. State, 86 Ala. 77. 780 Instructions to Juries. [§ 351 argumentative, and also invades the province of the jury in instructing them as to what they should believe. 43 An instruction "that the jury were not bound to believe the evidence of the defendant in a criminal case, and treat it the same as the evidence of other witnesses, , but the jury may take into consideration the fact that he [the witness] is defendant, ' ' has been held to be in violation of a statute which provides that "no person shall be disqualified as a witness in any criminal case * * * by reason of his interest in the event of the same. ' ' 44 §352. Instructions tending to disparage testimony of accused. The court has ho right to disparage the testimony of an accused person, 45 and in instructing as to the credibility of the testimony of the accused, the court should refrain from making hostile comments upon such testimony. 46 It is erroneous to draw a comparison between the testimony of the accused and the circumstances against him, and tell the jury that "they [the circumstances] cannot be bribed, that they cannot be dragged into perjury, they cannot be seduced by bribery into perjury, but they stand as bloody, naked facts before you, * * * in opposition to and confronting this defendant, who stands before you as an interested party. ' ' 47 It is also improper to instruct that "something more tangible, real, and certain than a simple declaration of the accused is necessary to show self-defense on a murder trial." 48 So, it is error for the court to place the defendant in a separate and inferior class from all other wit- 43— Bodine v. State, 129 Ala. 106. 46— Hicks v. United States, 150 44— Chambers v. People, 105 111. U. S. 442, 37 L. Ed. 1137. 412. See also, Hughes v. State, 3 47 — Hickory v. United States, 160 Okla. Cr. 387, 106 Pac. 546, as to U. S. 408, 40 L. Ed. 474. the vice of singling out a defendant. 48 — Allison v. United States, 160 45— People v. Arnold, 248 111. 169. U. S. 203, 40 h. Ed. 395. § 35£] CREDIBILITY AND PBOBATIVB FoBCE OP EVIDENCE. 781 nesses, by instructing that the jury are not bound to treat his, evidence the same as that of other witnesses. 40 Thus, an instruction that the jury have no right to disre- gard the testimony of the defendant on the ground alone that he is charged with crime, but that the law presumes him innocent until he is proved guilty, and that his testi- mony should be fairly weighed, is properly refused as directing the jury to weigh his testimony by an arbitrary standard. 50 §353. Instructions as to contradictory statements of accused and corroboration. The rules that govern other witnesses apply to the ac- cused when he goes upon the stand and it is proper to call attention to corroboration or contradiction of his testimony by other credible evidence. 51 A statement of the legal effect of contradictory statements may properly be given to the jury in relation to the testimony of a defendant in a criminal trial, 52 and it is proper for the court to instruct that, if the testimony of the accused is contradicted, the jury ought to take the fact of such contradiction into con- sideration in determining the weight of his testimony. 53 So, it is proper to tell the jury that a particular test of credibility may be applied to the defendant's testimony, such as the fact that he has been contradicted by other wit- nesses or that his testimony may be rejected if he has wilfully sworn falsely to a material fact. 54 49— Hellyer v. People, 186 111. 51— People v. Zajieek, 233 111. 550, wherein it was held error to- 198; Miller v. People, 229 111. 376; instruct that, while defendant is a Maguire v. People, 219 111. 16; State competent witness, yet his credi- v. Winney, 21 N. D. 72. bility and the weight of his evi- 52 — Paulkner v. Territory, 6 N. M. dence are exclusively for the jury, 464, 30 Pac. 905. and, while the jury should not dis- 53 — Rider v. People, 110 111. 13 ; regard his evidence through mere Hatfield v. Chicago, R. I. & P. Ry. caprice, yet they are not hound to Co., 61 Iowa 434; Hinton v. Cream believe him, but may take into con- City R. Co., 65 Wis. 335. sideration his interest in the result. 54 — People v. Harrison, 261 111. 50— Lang v. State, 42 Fla. 595. 517. 782 Instructions to Jtjeies. [§353 An instruction that "the testimony [of the accused] * * * is subject to the same tests as the testimony of any other witness," and that, if "the testimony of the prisoner * * * is contradictory of itself, it cannot be true, " is proper. 55 So, an instruction that the jury ' ' should consider whether it is consistent with the other facts proven to their satisfaction, and whether it is corroborated or not by the other proofs, facts, or circumstances of the case," has been approved. 56 It has also been held proper to charge ' ' that if, after con- sidering all the evidence in the case, they [the jury] find that the accused has willfully and corruptly testified falsely to any fact material to the issue, * * * they have the right to entirely disregard his testimony, excepting in so far as his testimony is corroborated by other credible evi- dence. ' ' 57 This instruction, however, it is believed, vio- lates the rule against singling out a witness, and applying to him- alone the maxim, falsus in uno, etc. 58 When an instruction calls attention to the consideration of contradictory evidence, an accused is entitled to an in- struction requiring the jury to consider corroborating evi- dence also. 59 § 354. Instructions as to testimony of accused and wife or other relations, etc. It has been held proper to charge "that, in considering the weight of the evidence given by both the defendant and his wife, they [the jury] will take into consideration the fact that he is the defendant testifying in his own behalf, and that she is his wife, and you may consider their interest 55— -People v. Petmecky, 99 N. Y. 58 — See § 380, post, instructions 421. as to maxim, "Falsus in uno, falsus 56 — People v. Jones, 24 Mich, in omnibus." 216. See also, Durant v. People, 59— MeElroy v. People, 202 111. 13 Mich. 355. 473. 57— Rider v. People, 110 111. 11; People v. Petmecky, 99 N. Y. 415. § 354] Credibility and Probative Force of Evidence. 783 in the case, and the marital relation, in passing upon the credibility of their testimony ; " 60 or ' ' that the jury should consider and decide whether such relationship (of any of the witnesses to the complaining witness or defendant) acted upon the witnesses, * * * to make false state- ments in their evidence, or whether such relationship influenced said witnesses and swerved them from the truth." 61 So, it has been held that where the wife of a defendant is a witness, the court may instruct that, in weighing her testimony, the jury may take into considera- • tion the fact that the defendant is the accused, and is on trial, the statute expressly providing that the fact of the relationship may be shown as affecting credibility. 62 But, it has also been held that an instruction as to the credibility of a defendant and his wife, that the jury may consider ' ' the fact that he is the defendant, and that she is his wife, and the interest that they have in the result of the trial," while not erroneous, has been severely criticised as sin- gling out evidence, as being of little value and as being indefinite. 63 The court may properly direct the jury to scrutinize with caution the testimony of relations, 64 but the omission to give this caution cannot be assigned as error. 65 It has been held proper to charge "that the law regarded with sus- picion the testimony of near relations." 66 A statement that the court admitted the testimony of a witness with great doubt as to its admissibility, on account of her rela- tionship to a party, has been held erroneous; 67 and it has been said that, "Where the witness, from motives of 60 — State v. Napper, 141 Mo. 401. and cases cited approving and criti- See also, State v. Strattman, 100 cising this charge. Mo. 540, where an instruction almost 64 — State v. Byers, 100 N. C. 512; identical in language was approved. Ferrall v. Broadway, 95 N. C. 551. 61 — State v. Hogard, 12 Minn. 295 . 65 — Wiseman v. Cornish, 53 N. C. (Gil. 192). 218. 62— State v. Parker, 39 Mo. App. 66— State v. Nash, 30 N. C. 35. 116. ^ 67— Potts v. House, 6 Ga. 324. 63— State v. Hyder, 258 Mo. 225, 784 Instructions to Juries. [§354 friendship or from family ties, makes statements favorable to those in whom he is interested, the suggestion by the court, in an instruction, that they should give to the testi- mony of each witness such weight as they may deem it en- titled to, is in effect saying to the jury that the statement of such a witness is entitled to less weight than statements made by those entirely disinterested in the result." 68 So, an instruction to the jury: " In estimating the value of the defendant's testimony, you have a right to consider what he has at stake in this case, the gravity of the charge against him, and the motives which might induce him to« misrepresent or speak falsely in regard to it; and you have a right to consider the motives of the other members of the family, and, after considering these, not only in their own intrinsic light, but in the light of all the testimony in the case, give such testimony the value you consider, under all the circumstances of the case, it is entitled to in coming to a final conclusion," — is objectionable, as telling the jury, in effect, that the wife and daughter had strong motives for giving the most favorable coloring possible in behalf of the accused to the facts which they were called to delineate! 69 It has been held proper to instruct that the jury should consider the relations which the prosecuting witness and the defendant bore to the case, in determining what weight to give their testimony. 70 But, an instruction: "While it is the law that the testimony of the prosecutrix should be carefully scanned, still this does not mean that such evi- dence is never sufficient to convict. If you believe the prosecutrix, it is your duty to render a verdict accord- ingly, ' ' — is not open to the objection that, it tells the, jury that they may act on the testimony if they believe it, al- though it may not be sufficient in substance, though true, to establish the offense. 71 The court should, on request, 68— Barnard v. Com. (Ky.) 8 S. 70— People v. Herriok, 59 Mich. W. 444. 563. 69 — State v. Pomeroy, 30 Ore. 16, 71 — People v. Wessel, 98 Cal. 352, 46 Pac. 797, ' ' 33 Pac. 216. § 355] Credibility and Pbobative Fobce of Evidence. 785 charge "that any money offered or promise made to the accomplice, to induce him to testify, is material, as bearing on the credibility of the witness," if there is evidence on which to base such an instruction. 72 § 355. Instructions as to credibility of other witnesses. It is competent for the court to caution the jury to con- sider whether the interest or bias of a witness is apparent, and, if so, to weigh and credit the testimony accordingly, 73 but a general instruction to the effect that it is proper to consider the interest and bias or prejudice of witnesses in judging of their credibility is sufficient unless some good reason appears for specially cautioning the jury. 74 Thus, it has been said that a failure to comment on all the circum- stances tending to discredit or corroborate the witnesses is not error, as there is no rule of law requiring such com- ments. 75 And an instruction that the testimony of inter- ested witnesses is to be examined with greater care than that of disinterested witnesses has been approved. 76 In charging as to the credibility of witnesses other than parties, it has been held proper to instruct that the jury may consider the interest of the witnesses in the event of the suit; 77 that the jury should "look at all the facts and 72— People v. Butler, 62 App. & St. L. R. Co. v. Gates, 137 111. Div. (N. Y.) 508. App. 309; Eckhardt v. People ex. rel. 73— White v. Chicago, M. & P. Holbert, 116 111. App. 408. See also,' S. R. Co., 49 Mont. 419, 143 Pac. McDonell v. Rifle Boom Co., 71 561. Mich. 61. In the last case, the in- 74 — State v. Gray, 90 Kan. 486, struction approved was as follows: 135 Pac. 566. "Now, it is said that some of these 75 — Faulkner v. Paterson Ry. Co., witnesses are interested in or in the 65 N. J. L. 181. employ of the boom company, and 76 — Hinton v. Cream City R. Co., you are to consider that circum- 65 Wis. 335. stance in weighing your testimony. 77 — City of Harvard v. Crouch, You have a right to do that, gentle- 47 Neb. 133; Klepsch v. Donald, 4 men, and if you think that any cir- Wash. 436; 31 Am. St. Rep. 936, 30 cumstance of that kind has operated Pae. 991. Instruction directing con- upon their judgment, so that they sideration of witness \ interest in have not been able to form an im- case held proper. Pittsburg, C, C. partial judgment, you must consider Blashfield Vol. 1—50 786 Iststetjctions to Juries. [§355 circumstances of the case, the character of- the witnesses,- * * * their relationship to the parties, * * ' * and thus determine upon which side the credibility preponder- ates, and "render a verdict accordingly;" 78 or "that, in determining the weight of the testimony [concerning ma- terial matters in controversy], * * * the jury have the right, and it is their duty as jurors, to take into consid- eration the interest which any witness may have in the subject-matter involved." 79 So, also, it is proper to in- struct that "it is the duty [of the jury] to reconcile and harmonize the evidence, if possible ; " to " take into consid- eration the appearance of the witness on the stand, his in- terest in the result of the suit, or the want of it. ' ' 80 The court may properly instruct "that you, the jury, are the sole judges of the credibility of witnesses and the weight of evidence; but you should be circumspect in the consid- eration of evidence given by either side which it is impos- sible, in the nature of things, for the other side to disprove, — such as conversations or transactions with one deceased, — and give to such evidence only such weight as, in view of the interest of the witness and all circumstances, you may deem it fairly entitled to." S1 It is proper to refuse an instruction that the testimony of a witness is to be dis- trusted because, if the suit or prosecution should terminate in a certain way, he would be benefited pecuniarily. 82 If the mode of obtaining admissions indicates that a skilled and experienced person has unduly influenced or unfairly induced admissions, such facts should be closely scanned by the jury, and should greatly affect the weight to be given to the admissions, and the jury may bo told to closely examine such evidence. 83 their testimony for what it is 81 — Meyer v. Blakemore, 54 Miss. Worth." 575. 78— Rogers v. King, 12 Ga. 229. 82— Com. v. Pease, 137 Mass. 576. 79— Salazar v. Taylor, 18 Colo. 83— Fidelity Mut. Life Ass'n v. 538, 33 Pac. 369. Jeffords, 46 C. C. A. 377, 107 Fed. . 80— Little v. McGuire, 43 Iowa 402, 53 L. R. A. 193n. 447. J 355] Credibility and Probative Force of Evidence. 787 The instructions should not single out a particular wit- ness and call attention to his testimony, 84 and when the judge designates a particular witness and instructs the jury that -they should consider his interest in the case in determining his credibility he invades the province of the jury. 85 It is also proper to refuse an instruction which tells the jury that the credibility of the witnesses on one side is affected by their interest in the event of the suit, while the instructions ignore similar facts affecting the credibility of the witnesses on the other side. 8 ' 3 So, an instruction calling the jury's attention to the plaintiff's interest in the suit as affecting his credibility is properly refused if the test of interest is applicable to other witnesses in the case. 87 The instructions should not intimate that the witness is interested or biased or that he is to be discredited. 88 So, in instructing as to the credibility of interested witnesses generally, whether parties or not, it is improper to instruct that a witness' interest affects his credit, 89 or that, "if the witness is interested in the result of the prosecution, this tends to discredit him." 90 So, the court should not charge that "one interested will not usually be as honest and candid as one not so;" 91 or that, where two adverse "wit- nesses appear to be equally credible in every other respect, the one who appears to have the greater interest in the re- sult of the case is to have the less weight of the two;" 92 84 — White v. Chicago, M. & P. S. affect his credit, and that it is for R. Co., 49 Mont. 419, 143 Pac. 561; the consideration of the jury, they Hughes v. State, 3 Okla. Cr. 387, being the judges of whether it does 106 Pac. 546. or ^ oes no ^ influence his testimony, 85— State v. King, 135 La. 117. and, if so, to what extent." 86 — Phenix Ins. Co. v. La Pointe, 90 — Pratt v. State, 56 Ind. 179. n L . * . . „ Varoto „ 91— Veatch v. State, 56 Ind! 584. 87— Pennsylvania Co. v. Versten, ' > 140 111 637 p " ' Greer v - State, 53 88— White v. Chicago, M. & P. S. Ind - 42 °- R. Co., 49 Mont. 419, 143 Pac. 561. 92— Lee v. State, 74 Wis. 45, in 89— Davis v. Central R. Co., 60 which it was alleged, as a reason, Ga. 329, in which it was said the that such instruction leaves out better instruction is "that it may any consideration of surrounding 788 Instructions to Juries. [§ 355 or to state "that an important witness * * * on the material question at issue was 'apparently interested';" 93 or "that witnesses who are disinterested are entitled to more weight than those who, for any reason, are shown to have an interest in the determination of the case;" 94 or that the testimony of a disinterested witness is entitled to more weight than that of plaintiff. 95 And it has been held erroneous to charge that ' ; the jury are not bound to believe the testimony of any of the witnesses," where there were several disinterested witnesses whose testimony was not contradicted, and was not inherently improbable. 96 An instruction that "the jury have the right, and may take the liberty, of disregarding the witnesses of the defendant, if they consider them interested, even -though they be not contradicted or impeached," is improper, and is too broad, as making the criterion whether the jury considers the wit- ness interested, and giving to the jury a discretion to refuse to consider evidence which is competent. 97 § 356. Credibility of particular classes of persons. §357. Police officers and detectives. Instructions cautioning the jury in weighing the testi- mony of police officers are countenanced by the courts in behalf of a defendant to call the attention of the jury to the fact that the hunting instinct still exists, and that men whose duty it is to prosecute criminals sometimes allow their zeal, perhaps unconsciously, to color or bias their circumstances, or of the effect of should be given to his testimony, corroborative testimony. but we know of no legal warrant 93 — Lellyett v. Markham, 57 Ga. for an instruction from the court 13. that the testimony of a disinter- 94 — Omaha Belt Ey. Co. v. Me- ested witness is entitled to 'more Dermott, 25 Neb. 714. weight' than his." 95— Platz v. McKean Tp., 178 Pa. 96— Tyler v. Third Ave. B. Co., 601, in which it was said: "The 18 Misc. Eep. (N. Y.) 165. fact that the witness has an interest 97 — Berzevizy v. Delaware, L. & in the case may and should be con- W. E. Co., 19 App. Div. (N. Y.) sidered in determining what weight 309. § 358] Credibility and Peobative Force of Evidence. 789 testimony in the effort to procure a conviction. That is the only reason why such instructions are permitted. 98 It has been held that the defendant in a criminal case is entitled to an instruction that greater care should he exer- cised in weighing the testimony of informers, detectives, or other persons employed to hunt up evidence against him than in the case of witnesses who are wholly disinterested." Instructions seeking to discredit the testimony of detect- ives may be refused, 1 especially when they invade the province of the jury, 2 and it has been held proper to refuse an instruction that "greater care should be exercised in weighing the testimony of informers, detectives and other parties specially employed to hunt up evidence against a defendant." 3 It is also error to instruct that testimony of a detective may be disregarded except when corrobo- rated, 4 and an instruction that the business of policeman or detective is a lawful one, that the jury should not through mere caprice or prejudice reject their testimony, etc., is faulty in singling out and calling attention to the testimony of particular witnesses. 5 § 358. Same — Employees. Former or present employment is not an element in de- termining the credibility of witnesses, unless it is shown that such witnesses have an interest in the result of the 98 — Shellenberger v. State, 97 pie v. Gardt, 258 111. 468, aff'g 175 Neb. 498, L. R. A. 1915 0. 1163. 111. App. 80, je v. State, 61 Neb. In a prosecution for selling intox- 240, 87 Am. St. Rep. 457. But com- icating liquors in anti-saloon terri- pare Cooney v. State, 61 Neb. 342. tory, an instruction referring to the i 1 — People v. Gardt, 175 111. App. testimony of private detectives, 80, aff'd 258 111. 468. which tells the jury that such evi- 2 — People v. Dressen, 158 111. App. dence should be received with care 139. and caution, is improper. People v. 3— People v. Newbold, 260 111. 196. Carter, 188 111. App. 22. An instruction that the evidence 4 — Riesen v. Riesen, 148 111. App. of a private detective should be re- 460. ceived with a large degree of cau- 5 — People v. Mendelson, 264 111. tion may be properly refused. Peo- 453, L. R. A. 1915 C 627n. 790 Instructions to Juries. [§358 suit. And an instruction as to considering the interest of a witness should not be given where no witness having any interest in the suit has testified, and it is apparent that such instruction is directed against a witness who was in the defendant's employ. 7 So, an instruction as to, the bias of an employee has been held improper where the only witnesses within such class were those called by the defendant. 8 An instruction suggesting that "suspicion attaches to the testimony of agents or servants of a cor- poration or individual by reason of their employment, or that they have any such interest as requires them to be dealt with differently from other witnesses," should not be given. 9 Where a case is extremely close upon the facts an instruction which improperly informs the jury as to the rule to be applied in weighing the testimony of wit- nesses who are the employees of one of the parties, can- not be held to be merely harmless error. 10 An instruction that the jury have no right to disregard the testimony of an unimpeached witness simply on the ground that he is an employee, is proper, 11 and an instruction on the interest of a witness as an employee is proper where the liability of the defendant depends on the negligence of such wit- ness. 12 6 — Dowd v. Chicago City Ry. Co., 153 111. App. 85. 7 — Roberts v. Chicago City Ry. Co., 262 111. 228. 8 — Ovens v. Chicago City Ry. Co., 171 111. App. 647. 9 — West Chicago St. R. Co. v. Raftery, 85 111. App. 319; Mar- quette, H. & O. R. Co. v. Kirkwood, 45 Mich. 51, 40 Am. Rep. 453. An instruction that the jury "will con- sider the interest of the parties; consider the relationship as well as the employment, as calculated to bias, whether it biased in this case, ' ' is not erroneous as intimating ' ' that employment would necessarily bias a witness." Central of Georgia Ry. Co. v. Bernstein, 113 Ga. 175. 10 — Powers v. Chicago City Ry. Co., 185 111. App. 158. 11 — Randall v. Sterling, D. & E. Elec. Ry. Co., 158 111. App. 56. The refusal of an instruction stat- ing that the jury have no right to disregard testimony simply because the witness is an employee, is error. Olsen v. Chicago City Ry. Co., 153 111. App. 75. 12 — Pusateri v. Chicago City Ry. Co., 156 111. App. 578. § 361] Cbedibility and Probative Foboe of Evidence. 791 § 359. Same — Attorneys. The practice of attorneys appearing as witnesses in a case is not regarded with professional propriety, and the jury may be instructed that they may consider their in- terest in the case as attorneys in determining their credi- bility, but it is not proper to instruct the jury as to the professional propriety of their becoming witnesses. 13 § 360. Same— Experts. It is improper to cast discredit upon a medical witness because he may have attended the trial from an adjoining state, with the expectation that his expenses would be paid. Presumably, the witness was actuated by humane motives. 14 § 361. Unsworn statement of defendant in criminal cases. In some states the defendant in a criminal case is au- thorized to make an unsworn statement before the jury, and though he is not subject to cross-examination and is not, strictly speaking, a witness, his statement is in the nature of evidence to be considered by the jury. 15 The jury may be instructed that they may give the un- sworn statement of defendant more Weight than the sworn testimony of unimpeached witnesses, if they honestly believe it to be entitled to such weight; le and they may be told that the statement of the prisoner is entitled to such weight as the jury may think it worthy of. 17 "In determining the credit to which they [the jury] may think it entitled, they 13— Judy v. Judy, 261 111. 470. with the statement. * * * The 14 — Bradley v. .State, 31 Iud. 492. jury are to deal with it on the plane 15 — Beasley v. State, 71 Ala. 328; of statement, and not on the plane Letson v. State, 7 Ga. App. 745; of evidence, and may derive from it People v. Arnold, 40 Mich. 715. such aid as they can in reaching the Compare Vaughn v. State, 88 Ga. 731, truth. The law fixes no value upon in which it was said that "the jury it. It is a legal blank. The jury trying a criminal case are sworn to may stamp it with such value as they give a true verdict according to evi- think belongs to it. ' ' dence. It is important for them not 16 — Harrison v. State, 83 Ga. 129; to confound the prisoner 's statement People v. Jones, 24 Mich. 226. with the evidence, or the evidence 17 — Blackburn v. State, 71 Ala. 792 Insteuctions to Jubies. [ § 361 are not to be precluded by any artificial rule from giving full weight to every consideration, or to any feature of such statement, which may tend in any way to produce belief or disbelief, either of the statement itself, or of the evidence of witnesses to which it relates. ' ' 18 And an instruction that the issues are to be determined "by looking to the testimony of the witnesses that have sworn in the case"' was held not erroneous, even though the defendant has made a statement giving his version of the transaction, and denying his guilt. It is said, however, to be the better practice in such case to authorize the jury to, consider his statement in connection with the evidence, and to give it such force as they think it is entitled to receive. 19 It is proper to refuse a request that defendant's statement "is to be given no less credence on account of its not being made under oath." 20 It cannot be assumed by the judge that the statement is not to be believed; 21 but the jury's attention may be called to the fact that the statement is not made under oath, and that the failure to tell the truth will not subject accused to any penalty. 22 It has been held improper for the judge to say that "he did not think such statement would warrant them in setting aside unimpeached sworn evidence ; " 23 or that the jury should not receive such statement unless corroborated; 24 or that "his statement, to avail him, must be in those parts that are in conflict with the evidence * * * in material matters." 25 A charge that certain matters bearing upon the guilt of defendant are to be determined by the jury under 319; Poppell v. State, 71 Ga. 277; 21— People v. Arnold, 40 Mich. Durant v. People, 13 Mich. 355. See 715. also, Harker v. State, 8 Ga. App. 22 — Poppell v. State, 71 Ga. 276; 93. Harker v. State, 8 Ga. App. 93. 18 — De Foe v. People, 22 Mich. 23 — Durant v. People, 13 Mich. 226. 351. 19— Sledge v. State, 99 Ga. 684. 24— People v. Arnold, 40 Mich. 20— Blackburn v. State, 71 Ala. 710. 319. 25— Lovejoy v. State, 82 Ga. 87. § 362] Credibility and Probative Force of Evidence. 793* the evidence, and that "the reasonable doubt that is spoken of * * * should arise out of the case, either from the testimony in the case, or from the lack of testi- mony, or from a conflict of testimony," is not erroneous as excluding from the jury the prisoner's statement. 26 A charge that "the law declares, in all criminal cases in this state, defendant shall make to the court and jury jnst such statement in his defense as he thinks proper to make. Such statement is not to be under oath, and is to have just such force and effect only as the jury think proper to give it; but the jury may believe it in preference to the sworn testimony, if they think proper to believe it, provided the defendant shall not be subject to cross-examination, except by his own consent," — is not erroneous because of the use of the word "shall" instead of the words "shall have the right to," and so calculated to raise the impression in the minds of the jury that the defendant is required to make a statement. 27 § 362. Testimony of accomplices. At common law, 28 and as a general rule, a conviction of a defendant may be had on the uncorroborated testimony of an accomplice; 29 although there are statutory provi- 26— Vaughn v. State, 88 Ga. 731. 665; Friedberg v. People, 102 111. 27— Smith v. State, 94 Ga. 591. 160; Collins v. People, 98 111. 589; 28 — At common law, a jury could Earll v. People, 73 111. 333. But see, convict on the uncorroborated testi- People v. Feinberg, 237 111. 348. mony of an accomplice. People v. Indiana. Ulmer v. State, 14 Ind. Ruef, 14 Cal. App. 576, 114 Pac. 48, 52. 54; In re Hardenbrook, 135 App. Louisiana. State v. Mason, 38 La. Div. (N. Y.) 634. Ann. 476; State v. Prudhomme, 25 29 — Arkansas. Flanagin v. State, La. Ann. 525. 25 Ark. 96. Maine. State v. Litchfield, 58 Me. Connecticut. State v. Stebbins, 29 267. Conn. 463, 79 Am. Dec. 223. Massachusetts. Com. v. Bosworth, District of Columbia. United 22 Pick. 398. States v. Neverson, 1 Mackey 154. Mississippi. Fitzcox v. State, 52 Florida. Knight v. State, 60 Fla. Miss. 923. 19; Tuberson v. State, 26 Fla. 472. Missouri. State v. Shaffer, 253 Mo. Illinois. Sehulz v. Schulz, 138 111. 320; State v. Dawson, 124 Mo. 418. 794 Instructions to Jubies. [§362 sions in a number of states to the contrary, and requiring the testimony of an accomplice to be supported by corrobo- rating evidence. "While "the source of this evidence is so corrupt that it is always looked upon with suspicion and jealousy, and is deemed unsafe to rely upon without con- firmation," 30 it is not a rule of. law that accomplices must' be corroborated in order to render a conviction valid. 31 The degree of credit to be given an accomplice is a mat- ter exclusively within the province of the jury. They may, if they see fit, act upon an accomplice's testimony, even in a capital case, without any confirmation of his statements. 32 ' ' The evidence of an accomplice is undoubtedly competent, and may be acted on by the jury" as a sufficient basis for a conviction, although entirely unsupported. 33 However this may be, such evidence is considered very unsafe upon which to base a conviction, and it is usual for the court to give, certain cautionary instructions in regard to it. 34 Yet But "see, State v. Wilkins, 221 Mo. 444. . Nebraska. Olive v. State, 11 Neb. 1. New Jersey. State v. Hyer, 39 N; J. L. 603. New York. Lindsay v. People, 63 N. T. 143; People v. Costello, 1 Denio 83. North Carolina. State v. Barber, 113 N. C. 711; State v. Hardin, 19 N. C. 407. Pennsylvania. Cox v. Com., 125 Pa. St. 94. South Carolina. State v. Sowell, 85 S. C. 278; State v. Brown, 3 Strob. 508. Virginia. Brown v. Com., 2 Leigh 769. West Virginia. State v. Betsall, 11 W. Va. 704, Wisconsin. Ingalls v. State, 48 Wis. 647. United States. Richardson v. United States, 104 C. C. A. 69, 181 Fed. 1; Steinham v. United States, 2 Paine 68, Fed. Cas. No. 13,355. English. Rex v. Wilkes, 7 Car. & P. 272; Rex v. Durham, 1 Leach 478; Rex v. Atwood, 1 Leach 464. Contra, Shelly v. State, 95 Tenn. 152, 49 Am. St. Rep. 926. An instruction that the jury should not convict on the uncorrobo- rated testimony of an accomplice is erroneous. State v. Kimmell, 156 Mo. App. 461. 30— Com. v. Bosworth, 22 Pick. (Mass.) 399. 31 — Reg. v. Stubbs, 33 Eng. Law & Eq. 551. 32 — United States v. Neverson, 1 Mackey (D. C.) 154. 33— State v. Hardin, 19 N. C. 407; United States v. Sykes, 58 Fed. 1000. 34 — Com. v. Bosworth, 22 Pick. (Mass.) 398; State v. Barber, 113 N. C. 711; State v. Hardin, 19 N. C. 407. § 363] Credibility and Probative Force of Evidence. 795 the court cannot go beyond the usual cautions, "and, if the jury really yield faith to it [the testimony of an accom- plice], it is not only legal, but obligatory on their con- sciences, to found their verdict upon it." 35 § 363. Instructions that jury may convict on testimony of accomplice. Unless there is a statute providing that there can be no conviction on the uncorroborated testimony of an accom- plice, the jury may be instructed that they may legally .convict on such testimony, 36 but where this instruction is given, it is always in conjunction with other instructions, warning the jury of the suspicious nature and unreliability of such testimony. 37 The jury may be instructed that an accomplice is a competent witness, 38 and an instruction that "the fact that a witness was an accomplice may affect his credibility, but not his competency, — that is, he is a legal witness, and you must determine what credit you think his testimony is entitled to, whether corroborated or uncorroborated," — has been approved. 39 An instruction that an accomplice is a competent witness, and if the jury, 35 — State v. Hardin, 19 N. C. North Carolina. State v. Barber 407. 113 N. C. 711. 36 — Colorado. Wisdom v. People, United States. United States v; 11 Colo. 170, 17 Pae. 519. Babcoek, 3 Dill. 619, Fed. Cas. No. Illinois. Collins v. People, 98 111. 14,487. 584, 38 Am. Rep. 105; Earll v. Peo- English. Rex v. Wilkes, 7 Car. pie, 73 HI. 333. But see, People v. & P. 272; Reg. v. Stubbs, 33 Eng. Feinberg, 237 111. 348. Law & Eq. 551. Massachusetts. Com. v. Price, 10 37 — See § 364, post, Instructing Gray 472, 71 Am. Dec. 668n; Com. v. jury to receive accomplice testi- Brooks, 9 Gray 299. mony with caution, and § 365, post, Missouri. State v. Dawson, 124 "Advising jury to acquit unless cor- Mo. 418; State v. Crab, 121 Mo. 554. roborated." See State v. Wilkins, 221 Mo. 444. 38— Wisdom v. People, 11 Colo. Nebraska. Olive v. State, 11 170, 17 Pac. 519. Neb. 1. 39 — State v. Banks, 40 La. Ann. New Jersey. State v. Hyer 39 N. 736. J. L. 603. 796 Instkuctions to Juries. [§ 363 weighing the probabilities of his evidence, think him worthy of belief, a conviction, supported by such testimony alone, is legal, is correct, the jury being further instructed that evidence from an accomplice should be received with great caution. 40 So, an instruction that, "while it is a rule of law that a person may be convicted upon the uncorrobo- rated testimony of an accomplice, still a jury should always act upon such testimony with great care and caution, and subject it to careful examination in the light of all other evidence in the case; and the jury ought not to convict upon such testimony alone, unless, after a careful exami- nation of such testimony, you are satisfied beyond all rea- sonable doubt of its truth," — is not erroneous in a juris- diction which does not absolutely require, in all cases, that the testimony of an accomplice shall be corroborated. All that is necessary is to caution the jury to carefully examine the testimony of the accomplice before accepting it. 41 It is not proper to charge ' ' that the only chance to bring offenders to justice, and to protect the lives and property of honest citizens, is often that which is offered by allow- ing one offender to turn state's evidence and to escape, that another may be convicted and punished." The policy of using the evidence of an accomplice should not be discussed in the instructions to the jury. 42 § 364. Instructions that evidence of accomplice is to be received with caution. It seems to be the well-settled and almost universal prac- tice' for the court to instruct that the testimony of accom- plices should be viewed by the jury with great care and caution, 43 although a somewhat different rule prevails in 40 — Wisdom v. People, 11 Colo. Kansas. State v. Kellerman, i4 170, 17 Pac. 519. Kan. 135. 41 — State v. Coates, 22 Wash. 601, Massachusetts. Com. v. Price, 10 61 Pae. 726. Gray 472, 71 Am. Dec. 668n. 42 — Long v. State, 23 Neb. 33. Missouri. State v. Donnelly, 130 43 — Illinois. People v. Feinberg, Mo. 642; State v. Dawson, 124 Mo. 237 111. 348. 418; State v. Minor, 117 Mo. 302; § 364] Credibility and Pbobative Force of Evidence. 797 one state. 44 It has been held, however, that, in the absence of a request, failure to give such an instruction cannot be assigned as error. 45 There is some diversity of opinion as to "whether a refusal to give an instruction of this nature, when requested, will be ground for reversal. There are rulings both ways on this point. 46 It has been held error to refuse to charge "that the evidence of an accomplice is to be viewed * * * with caution and distrust," where a statute provides that the evidence of an accomplice is to be viewed with distrust, and that an instruction to that effect should be given when applicable to the case. 47 But State v. Jackson, 106 Mo. 174; State v. Harkins, 100 Mo. 666; State v. Walker, 98 Mo. 95. Nebraska. Long v. State, 23 Neb. 33; Olive v. State, 11 Neb. 1. New York. People v. Costello, 1 Denio 87. North Carolina. State v. Miller, 97 N. C. 484; Ferrall v. Broadway, 95 N. C. 551; State v. Hardin, 19 N. C. 407. South Carolina. State v. Brown, 3 Strob. 508. Vermont. State v. Dana, 59 Vt. 614. Washington. State v. Coates, 22 Wash. 601, 61 Pac 726. Wyoming. Arnold v. State, 5 Wyo. 439, 40 Pac. 967. United States. United States v. Harries, 2 Bond 311, Fed. Cas. No. 15,309; United States v. Babeock, 3 Dill. 619, Fed. Cas. No. 14,487; United States - v. Sykes, 58 Fed. .1004. 44 — In West Virginia it seems that no caution as to accomplice testimony is proper. In that state it has been said that, while such testimony is suspicious, and ema- nates from a bad source, yet the jury may believe it, although it is wholly uncorroborated. And it is not proper for the court to give any instructions to the jury as to the weight of such or any other evi- dence. State v. Betsall, 11 W. Va. 704. 45 — State v. Rook, 42 Kan. 419, 22 Pac. 626. 46 — A refusal is ground for re- versal: Solander v. People, 2 Colo. 48; Cheatham v. State, 67 Miss. 335, 19. Am. St. Bep. 310. A refusal is not ground for reversal: Hoyt v. People, 140 111. 588, 16 L. R. A. 239n. See also, State v. Jones, 64 Mo. 391. 47— People v. Sternberg, 111 Cal. 11, 43 Pac. 20L; People v. Strybe (Cal.), 36 Pac. 3. To the same ef- fect, see People v. Bonney, 98 Cal. 278, 33 Pac. 98, in which it was held that, where the only evidence to justify a verdict against the de- fendant was the testimony of an admitted accomplice and that of a third person as to defendant's oral admissions, the refusal of the court- to instruct the jury that "the testi r mony of an accomplice ought to be viewed with distrust, and the evi- dence of the oral admissions of a 798 Instetjctions to Jtjeies. [§ 364" it has also been held that where an accomplice is called as a witness in behalf of defendant, it is not proper to instruct that his testimony should be viewed with caution and dis- trust, on the ground that such instruction tends to dis- credit a witness for the defendant, and charges the jury with respect to matters of fact. 48 An instruction that the jury are the judges of the cred- ibility of an accomplice, and that while the testimony of an accomplice must be received with great caution, still, if the jury are convinced of its truth they have a right to believe it, and it is their, duty to do so, is free from any misleading tendency. 49 § 365. Advising jury to acquit unless corroborated. It is proper to advise the jury to acquit, where there is no evidence other than the uncorroborated testimony of an accomplice, and it is almost the universal practice to do so. 50 It was said in one case that the fact that one may be party with caution," is prejudicial error. 48— People v. Bonney, 98 Cal.' 278, 33 Pac.98; People v. O'Brien, 96 Cal. 171; 31 Pac. 45. 49 — People v. Harris, 263 111. 406. 50 — Arkansas. Planagin v. State, 25 Ark. 96. Connecticut. State v. William- son, 42 Conn. 263. District of Columbia. United States v. Neverson, 1 Mackey 154 Illinois. Hoyt v. People, 140 111 588, 16 L. B. A. 239n; Sehulz v Schulz, 30 N. E. 317; Collins v. Peo pie, 98 111. 584, 38 Am. Eep. 105; Earll v. People, 73 111. 333. Louisiana. State v. Mason, 38 La. Ann. 476; State v. Prudhomme, 25 La. Ann. 522. Massachusetts. Com. v. Bishop, 165 Mass. 148; Com. v. Brooks, 9 Gray 299; Com. v. Bosworth, 22 Pick. 398. Mississippi. Cheatham v. State, 67 Miss. 335; 19 Am. St. Eep. 310. Missouri. State v. Walker, 98 Mo. 95; State v. Chyo Chiagk, 92 Mo. 4151 New Jersey. State v. Hyer, 39 N. J. L. 598. North Carolina. State v. Barber, 113 N. C. 711; State v. Haney, 19 N. C. 390. Ohio. Allen v. State, 10 Ohio St. 288. Pennsylvania. Cox v. Com., 125 Pa. St. 94; Watson v. Com., 95 Pa. St. 424. South Carolina. State v. Green, 48 S. C. 136. Texas. See Russell v. State, 55 Tex. Cr. App. 330. Vermont. State v. Potter, 42 Vt. 496. Wisconsin. Black v. State, ^9 Wis. 471; Ingalls v. State, 48 Wis. 647. § 365] Cbedibility and Probative Foboe op Evidence. 799 convicted of a felony on the uncorroborated testimony of an accomplice makes it the more necessary the jury should be properly cautioned by the court in regard to such tes- timony. 51 And as was said by a learned judge in -another case: "It is a practice which deserves all the reverence of law, that judges have uniformly told juries that they ought not to pay any respect to the testimony of an accom- plice, unless the accomplice is corroborated in some mate- rial circumstance." B2 Where an instruction of this nature is given, the judge does not thereby withdraw the case from the jury by positive direction to acquit, but merely advises them not to give credit to the testimony of the ac- complice. 63 The practice of giving such instructions, however, rests in the discretion of the presiding judge; 54 and in one case the appellate court said that, although it did not approve of the trial judge's neglect to give the customary caution, they could not treat it as legal error. 55 It is the better prac- tice to give the jury a caution of this nature, but it is never- theless held by the majority of decisions that this is merely "a rule of practice, and not a rule of law," and therefore a failure of the judge to give such an instruction of his own motion, or even a refusal to do so on request, is not errone- ous, or, if erroneous, is not ground for reversal. 56 .Wyoming. McNeally v. State, 5 51 — State v. Jones, 64 Mo. 391. Wyo. 59, 36 Pac. 824. 52— Reg. v. Farler, 8 Car. & P. United States. Steinham v. Unit- 106. ed States, 2 Paine 180 Fed. Cas. No. 53— Flanagin v. State, 25 Ark. 96; 13,355; United States v. Sykes, 58 United States v. Sykes, 58 Fed. 1000. Fed. 1004. 54— State v. Haney, 19 N. C. 390. English. Rex v. Jones, 2 Camp. 55 — State v. Potter, 42 Vt. 495. 132; Rex v. Wilkes, 7 Car. & P 272; 56— Connecticut. State v. Wil- Reg. v. Stubbs, 33 Eng. Law & Eq. liamson, 42 Conn. 263. 551. Illinois. Collins v. People, 98 111. The judge may direct the jury not' 584, 38 Am. Rep. 105. to return a verdict of guilty on the Louisiana. State v. Prudhomme, uncorroborated evidence of an ac- 25 La. Ann. 525. complice. Conley v. People, 170 111. Massachusetts. Com. v. Wilson, 587. 152 Mass. 12; Com. v. Holmes, 127 800 Instructions to Jueies. [§ 366 § 366. Binding instructions to acquit unless corroborated. In jurisdictions where it is provided by statute that there can be no conviction on the uncorroborated testimony of an accomplice, it is, of course, proper to give the jury a binding instruction to this effect, 57 and a refusal, to give such an instruction, when warranted by the evidence, is clearly erroneous. 58 The decisions are not harmonious as to whether or not it is necessary to give such an instruc- tion, in the absence of a request therefor. Some courts hold that the general principle that an omission to charge on a particular point is not error, in the absence of a request, applies to the question of the necessity of corrobo- rating the testimony of an accomplice. 59 "Where the state does not seek to convict upon the evidence of the accom- plice alone, but adduces other proof, almost, if not wholly, sufficient to warrant a verdict against defendant, it is not incumbent upon the court, without request,, to charge as to necessity of corroboration. 60 In other jurisdictions, a failure to give such an in- struction when the evidence warrants it has been held reversible error, the view being taken that, if "evi- dence is adduced tending to show that a witness * * * is an accomplice, * * * it becomes the duty of the trial court to give in charge to the jury the law Mass. 424, 34 Am. Eep. 391n; Com. English. Eeg. v. Stubbs, Dears. v. Price, 10 Gray 472, 71 Am. Dee. Cr. Cas. 555. 668n. Contra, Hoyt v. People, 140 111. Mississippi. Cheatham v. State, 588, 16 L. E. A. 239n; State v. Wool- 67 Miss. 335, 19 Am. St. Eep. 310. ard, 111 Mo. 248. Missouri. State v. Watson, 31 57 — Bernhard v. State, 76 Ga. 613. Mo. 361. 58— State v. Patterson, 52 Kan. Ohio. Allen v. State, 10 Ohio St. 335, 34 Pac. 784; Craft v. Corn., 80 287. Ky. 349; Wicks v. State, 28 Tex. Pennsylvania. Cox v. Com., 125 App. 448; Coffelt v. State, 19 Pa. St. 94. Tex. App. 436; Sitterlee v. State, Vermont. State v. Potter, 42 Vt. 13 Tex. App. 581; Brann v. State 495. (Tex. Cr. App.), 39 S. W. 940; Mar- Wisconsin. Porath v. State, 90 tin v. State, 36 Tex. Cr. App. 632. Wis. 527, 48 Am. St. Eep. 954; Black ' 59— State v. Lawlor, 28 Minn. 224. v. State, 59 Wis. 471. 60— Eobinson v. State, 84 Ga. 674. § 366] Credibility and Probative Force of Evidence. 801 governing the testimony of accomplices;" 61 and in one of these last-named jurisdictions it is not even necessary to save an exception in order to make the error available on appeal. 02 Where the court is bound to instruct on this point, whether requested or not, if the charge given by the court of its own motion sufficiently covers the point, special requested instructions thereon may be properly refused. 63 A statute requiring corroboration of an accomplice's tes- timony extends to accessaries, and, if the evidence strongly tends to show that a witness endeavored, after the crime, to screen and shield the accused, and to enable him to avoid arrest, the court should charge on the necessity of corroboration. 6 * A charge upon accomplice testimony, which refers to only one witness, when other witnesses par- ticipated in the crime, or had guilty knowledge thereof, is erroneous. 65 Where a person jointly indicted with defend- ant only consents to testify on condition of exemption from prosecution, and is promised that exemption by the state, he must be regarded as an accomplice, and the de- fendant is entitled to an instruction that his uncorrobo- rated testimony is not sufficient to convict. It is not the 61 — Ray v. State, 1 G-. Greene as an issue of fact, the question as (Iowa) 316, 48 Am. Dec. 379; Wil- to whether a witness is an accom- liams v. State, 42 Tex. 392; Stone pliee, though that the witness is an v. State, 22 Tex. App. 185; Ander- accomplice is unquestioned. In such son v. State, 20 Tex. App. 312; Ful- a case, the court may- charge that ler v. State, 19 Tex. App. 380; the witness is an accomplice, but it Hunnicutt v. State, 18 Tex. App. is not error not to do so. Carroll v. 522; Winn v. State, 15 Tex. App. 169; State (Tex. Cr. App.) 62 S. W. 1061. Miller v. State, i Tex. App. 251 ; Polk 62— Coburn v. State, 36 Tex. Cr. v. State, 60 Tex. Cr. App. 150 ; Tear v. App. 257. State, 60 Tex. Cr. App. 155 ; . Brace 63— Mercer v. State, 17 Tex. App. v. State, 43 Tex. Cr. App. 48; Brooks v. 452; Powell v. State (Tex. Cr. App.) State (Tex. Cr. App.) 56 S. W. 44 S. W. 504. 924; Parr v. State, 36 Tex. Cr. App. 64— Hunnicutt v. State, 18 Tex. 493; Stewart v. Sta,te, 35 Tex. Cr. App. 500. App. 174, 60 Am. St. Rep. 35; Owens 65— Powell v. State, 42 Tex. Cr. v. State (Tex.-Cr. App.) 20 S. W. App. 12; Powell v. State, 42 Tex. 558. Cr, App. 11. The court may submit to the jury, Blashfield Vol. 1—51 802 Instructions to Jukies. [§ 366 fact that the witness has been indicted that is material, but the fact that he testifies to escape prosecution. 66 Where the court instru'cts the jury on what constitutes an accomplice, and then instructs them, if a certain witness comes within such requirements, to disregard his testimony, the court does not err in not specifically telling them to dis- regard his testimony, if he is not a credible witness. 67 It is reversible error not to tell the jury that they cannot convict the defendant upon the testimony of an accomplice or accomplices, unless such testimony be corroborated by other evidence tending to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows that the offense was committed, and circumstances thereof. While one accomplice may cor- roborate another, the testimony of an accomplice is not the corroboration of the testimony of another accomplice which is required to convict. 68 A federal judge, trying a case in a state whose laws for- bid conviction upon the uncorroborated testimony of an ac- complice, will charge the jury to return a verdict of not guilty if the case goes before them on the testimony of the accomplice alone. 69 §367. Explaining nature of corroboration required. Where the state relies on the testimony of an accomplice to secure a conviction, the trial court, if requested, must instruct that they cannot find the defendant guilty unless such evidence is corroborated by other evidence which tends to connect the defendant with the commission of the offense. 70 If the statute requires that the corroborating evi- dence shall tend "to connect the defendant with the offense committed," an instruction that, "in order to con- 66— Barrara v. State, 42 Tex. 260. 69— United States v. Van Leuven, 67— Beach v. State, 32 Tex. Cr. 65 Fed. 78. App. 240. 70— Fairgrieve v. State, 10 Okla. 68— Powers v. Com., 110 Ky. 386, Cr, 109, 134 Pae. 837. 53 L. R. A. 245. § 367] Credibility and Pbobative Foece of Evidence. 803 vict a defendant upon the testimony of an accomplice, there must be sufficient corroborating testimony of his guilt to satisfy your minds of the truth of the charge against him, ' ' does not sufficiently comply with the statutory require- ment, and is erroneous. 71 Where a statute provides that "a conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circum- stances thereof,." and the court charges: "The corrobo- ration is not sufficient if it merely shows that the offense has been committed by some person," — an omission to refer to the "circumstances" of the offense is error. 72 Where a statute requires corroboration as to "matters material to the issue," the instruction should tell the jury what is meant by these words; 73 and if the corroboration "required by the statute * * * must relate to mate- rial facts which go to the identity of defendant in connec- tion with the crime," an instruction "that, if the testimony of a witness shows him to be an accomplice, the jury should not convict, unless his testimony is corroborated by testi- mony they believe to be true beyond a reasonable doubt, ' ' is erroneous, and properly refused. 74 If the corroboration of the testimony of the accomplice is required to go so far as to identify the person of the de- fendant, the jury should be so instructed. 75 In instructing on what corroboration is sufficient, the following charge has been approved: "The corroboration 71 — Watson v. State, 9 Tex. App. State v. Chyo Chiagk, 92 Mo. 395. 237. In the former case it was held that 72 — 'State, v. Smith, 102 Iowa 666.. if the other testimony was amply 73 — State v. Pratt, 98 Mo. 482; sufficient, and the identity of the State v. Chyo Chiagk, 92 Mo. 395. offense was well established by evi- 74 — Vaughan v. State, 58 Ark. dence aliunde, the error was not 354. prejudicial. 75— State v. Pratt, 98 Mo. 482; 804 Instructions to Jubies. [§ 367 ought to be sufficient to satisfy the jury of the truth of the" evidence of the accomplice. If the jury are satisfied that he speaks the truth in some material part of his testimony, in which they see him confirmed by unimpeachable evi- dence, this may be a ground for their believing that he also speaks the truth in other parts, as to which there may be no confirmation; but the corroboration ought to be as to some fact or facts connecting the prisoner with the offense, the truth or falsehood of which would go to prove or dis- prove the offense charged against the prisoner. " 76 It is the exclusive function of the jury to determine whether or not evidence offered for that purpose corroborates the tes- timony of an accomplice. 77 An instruction that, "you are further instructed that the defendant in this case cannot be convicted on the unsup- ported evidence of the accomplice, ' ' is erroneous, in that it does not define to the jury the nature of the corroborative testimony required. 78 Where, in a prosecution for arson, it is not claimed that defendant took any part in the burn- ing, but that he procured it to be done by others, who tes- tified at the trial, and evidence is introduced showing that defendant was seen talking with the witnesses, but the sub- ject of their conversation is not shown, and, on all the evi- dence, the case is a very close one, it is error to refuse to charge "that evidence showing the defendant was in the society of the accomplices is not sufficient, and such rela- tions are consistent with innocence. " 70 A requested charge that the testimony of an accomplice could not be "taken" unless corroborated by evidence going to show some fact, not only that a crime had been committed, but that the prisoner was implicated in it, is properly refused. Such refusal does not involve the question whether the judge 76-^Jackson v. State, 64 Ga. 345. 79— People v. Butler, 62 App. Div. 77— State v. Bunyard, — Ore. — , (N. Y.) 508. 144 Pae. 449. 78— Mitchell v. State, 38 Tex. Cr. App. 325. § 368] Credibility and Probative Force of .Evidence. 805 should have warned the jury that they ought not to con- vict on the uncorroborated testimony of the accomplice. 80 An instruction which authorizes the conviction of an ac- cused on the testimony of an accomplice, which "tends" ,to show that accused committed the offense, is erroneous. 81 § 368. Instructing as to who are accomplices. It has been held in one state that "a defendant who claims that a witness [who testified] against him was an accomplice, * * * an( j must be corroborated, has the right to have the court instruct the jury what constitutes an accomplice; but if he fails to ask such an instruction, he cannot complain of the omission of the court to give it." 82 But, ordinarily, a charge on the subject of the cor- roboration of accomplices should explain to the jury who are accomplices, in the sense requiring corroboration. 83 Where the court charges that a conviction cannot be had upon the testimony of an accomplice, unless corrobo- rated by other evidence tending to connect defendant with the offense charged, and that the corroboration is not suffi- cient if it merely shows the commission of the offense, and defines "an accomplice" in statutory language, it is not error, in the absence of a request, to fail to submit to the jury the necessity of corroboration of the testimony of the alleged accomplice, if they should find that he- was an ac- complice. 84 If there is any evidence to sbow that the witness is an accomplice, the court should not take the question from the jury. 85 Where there is evidence that a witness had 80— State v. Vicknair, 52 La. Ann. 82 — Carroll v. State, 45 -Ark. 539. 1921. 83— Suddeth v. State, 112 Ga. 407; 81 — Pace v. State, 58 Tex. Cr. Zollicoffer v. State, 16 Tex. App. App. 90. 312; Myers v. State, 6 Tex. App. 1. As to instructions concerning evi- As to sufficiency of definition, see dence "tending" to connect defend- Pace v. State, 58 Tex. Cr. App. 90. ant with offense, see Jordan v. State, 84 — Lockhart v. State, 29 Tex. 59 Tex. Cr. App. 208; Snelling v. App. 35. State, 57 Tex. Cr. App. 416; Maples 85— People v. Curlee, 53 Cal. 604^ v. State, 56 Tex. Cr. App. 99. 806 Instructions to Jukies. [§ 36.8 guilty knowledge of the crime, and lie aided the defendant in . manufacturing a defense, the court should charge on accomplice's testimony with reference to this witness, and leave it to them to say whether or not he was an accomplice in the case. 86 "It is not allowable in a criminal prosecu- tion, where a witness is claimed to have testified as an ac- complice, to instruct the jury as to the matter of fact whether the witness was an accomplice of the defendant." 87 Where unequivocal and uncontradicted evidence shows that a certain witness was an accomplice, the court may assume that fact, and charge that a conviction cannot be had on his uncorroborated testimony. 88 Where defendant's prin- cipal turns state's evidence, an instruction that he is an accomplice, and must be corroborated, is not erroneous, as assuming that the principal committed the crime, in the absence of any evidence contradicting the principal's con- fession as to, his part in the crime. 89 While declarations made by a prisoner out of court should be received with caution, it is proper for the court to refuse to caution the jury against giving credence to one, not an acknowledged accomplice, who has testified to such declarations. 90 But, of course, if a witness is admitted to testify solely as an accomplice, the court, in giving instructions, may properly assume that he is an accomplice. 91 §369. Instructions giving undue weight to accomplice testimony. It is improper to charge "that the jury are bound to accept and credit testimony of an accomplice, either stand- ing alone or more or less corroborated. It is their province 86— White v. State (Tex. Cr. 89— Wilkerson v. State (Tex. Cr. App.), 62 S. W. 749; Powell v. State, App.), 57 S. W. 956. 42 Tex. Cr. App. 11; Ballew v. State 90— Bafferty v. People, 72 111. 37. (Tex. Cr. App.), 34 S. W. 616. 91— Barrara v. State, 42 Tex. 260; 87 — People v. Sansome, 98 Cal. Zollicoffer v. State, 16 Tex. App. 235, 33 Pac. 202. 312. 88 — Torres v. State (Tex. Cr. App.), 55 S. W. 828. § 370] Cbedibility and Pbobative Fobce of Evidence. 807 to determine whether he is to be credited at all, and, if so, to what extent." 92 So, in case of a dismissal of the indict- ment as to an accomplice jointly indicted with defendant, in order that he might testify for the state, it is error to charge "that this fact should not be taken into considera- tion in determining the credibility of the accomplice." 93 §370. Evidence on which to base instructions as to ac- complices. In the absence of any evidence to show that a witness who has testified is an accomplice, instructions as to the effect of accomplice's testimony should not be given, 94 and no instruction should be given as to the effect of testimony of accessaries when there is no evidence to show that any witness is an accessary. 95 But where the evidence as to whether a witness was an accomplice or not is conflicting, it is error to refuse an instruction defining an accomplice. 96 "Mere knowl- edge on the part of a witness that the defendant committed the crime does not render such witness an ac- complice, so as to require corroboration of his testi- mony;" 97 and the mere fact that a witness of the crime charged remains silent concerning it will not warrant an instruction on accomplice's testimony. 98 Where the testi- mony of an accomplice does not in the least contribute to a .92 — Hamilton v. People, 29 Mich. Kerrigan v. State, 21 Tex. App. 487; 174. Brown v. State, 6 Tex. App. 286. 93— Gill v. State, 59 Ark. 422. 95— State v. Morgan, 35 W. Va. 94 — Tuberson v. State, 26 Fla. 260. 472; Smith v. State, 28 Tex. App. 96— Suddeth v. State, 112 Ga. 407. 309; May V. State, 22' Tex. App. 97— Smith v. State, 28 Tex. App. 595; Moseley v. State, 36 Tex. Or. 309. App. 578; Lawrence v. State, 35 Tex. 98 — O'Connor v. State, 28 Tex. Cr. App. 114; People v. Chadwick, 7 App. 288. .In this case, certain Utah 134, 25 Pae. 737. Mexicans were witnesses for the To invoke instructions on the law state. At the time of the murder, in regard to accomplice's testimony, which they saw, they were several there must be evidence to which the hundred miles from home, and did instructions would be applicable. not know the English language and Pitner v. State, 23 Tex. App. 366; the person killed, and the defend- 808 Instructions to Jubies. [§ 370 conviction, it is unnecessary to instruct as to necessity of corroboration." Where, in a prosecution for establishing a lottery, it appears that the lottery was operated, by means of a slot machine, the fact that a witness who worked for defendant is shown to have put nickels in the machine does not constitute him an accomplice in the establishment of the lottery, and the court consequently does not err in failing to submit the question of accomplice testimony in connection with testimony of such witness. 1 Where, in a prosecution for murder, it is shown that a wit- ness for the state accompanied the defendants to the body of deceased, which they reached after traveling several miles, some distance of the way on foot, through dense brush, and upon inquiring of the defendants, while en route to the body, their destination, and where they were taking him, this witness stated he was informed by them that they were going to bury deceased, and it is shown that the witness dug the grave, at the direction of the defendants, and was warned by them to say nothing of the affair, it is error to refuse a charge on accomplice testimony in connection with the testimony of such witness. 2 It is beyond the scope of this book to consider fully what constitutes an accomplice; but any evidence which tends to connect the witness with the commission of the offense is sufficient to require or justify a charge on accomplice testimony. 3 On defendant 's ' ' trial for incest with his step- daughter, where she was the principal witness for the state, and portions' of her testimony tended to inculpate herself, it was -held that the trial court should have given in charge * * * the statutory provisions controlling accomplice ants were Americans, and not 2 — Conde v. State, 33 Tex. Cr. known to the witnesses. -A-PP- 10. 99 — Waggoner v. State, 35 Tex. 3 — See Polk v. State, 60 Tex. Cr. Cr. App. 199. App. 150; Brace v. State, 43 Tex. 1— Prendergast v. State, 41 Tex. Cr. App. 48. Cr. App. '358. § 371] Credibility and Probative Fobce of Evidence. 809 testimony, and its corroboration. " 4 In a trial for attempt- ing to produce an abortion, where the female's father was a witness for the prosecution, and testified that the defend- ant informed him of his daughter's pregnancy, and sug- gested that he (the defendant) could give her a drug that would remove it, whereupon he (the witness) replied, "All right; anything to save my child," 5 the facts were held sufficient to warrant an instruction as to the testimony of the accomplice. § 371. Testimony of expert witnesses. The competency of an expert witness is a question to be determined by the court, but it is the exclusive province of the jury to determine wha^ weight shall be given to his testimony, and' the court, in giving its instructions, should not interfere with the right of the jury in this regard. 6 In 4 — Freeman v. State, 11 Tex. App. 92, 40 Am. Rep. 787. 5 — Watson v. State, 9 Tex. App. 237. 6 — Alabama. Burney v. Torrey, 100 Ala. 157, 46 Am. St. Rep. 33; Gunter v. State, 83 Ala. 96. Arkansas. Tatum v. Mohr, 21 Ark. 349. Georgia. Anderson v. Barksdale, 77 Ga. 86. Hlinois. Taylor v. Cox, 153 111. 220; Keithsburg & E. R. Co. v. Henry, 79 111. 290. Indiana. Johnson v. Thompson, 72 Ind. 167, 37 Am. Rep. 152; Davis v. State, 35 Ind. 496, 9 Am. Rep. 760n; Humphries v. Johnson, 20 Ind. 190. Iowa. Bever v. Spangler, 93 Iowa 576; State v. Cole, 63 Iowa 695. Kansas. Kansas City, W. & N. W. R. Co. v. Ryan, 49 Kan. 1, 30 Pae. 108; Atchison, T. & S. F. R. Co. v. Thul, 32 Kan. 255, 49 Am. Rep. 484, 4 Pae. 352. Massachusetts. White v. Fitch- burg R. Co., 136 Mass. 321. Michigan. Rivard v. Rivard, 109 Mich. 98, 63 Am. St. Rep. 566; Fox v. Peninsular White Lead & Color Works, 84 Mich. 676. Minnesota. Stevens v. City of Minneapolis, 42 Minn. 136. Mississippi. Louisville, N. O. & T. Ry. Co. v. Whitehead, 71 Miss. 451, 42 Am. St. Rep. 472. Missouri. St. Louis Gaslight Co. v. American Fire Ins. Co., 33 Mo. App. 348. Nebraska. Sioux City & P. R. Co. v. Finlayson, 16 Neb. 578, 49 Am. Rep. 724n. New York. Roberts v. Johnson, 58 N. Y. 613; Templeton v. People, 3 Hun 360. Pennsylvania. Mewes v. Crescent Pipe Line Co., 170 Pa. St. 369; Wells v. Leek, 151 Pa. St. 431. Vermont. Tillotson v. Ramsay, 51 Vt. 309. ."Its value may be very great, 6r 810 Instructions to Jubies. [§ 371 determining the credibility and weight of such evidence, the jury should consider it in connection with all the other evidence in the case, 7 and they are not bound by such evi- dence, but are at liberty to reject it altogether if they do" not consider it credible. 8 §372. Necessity of requesting 1 instructions as to expert witnesses. Where the court, on request, charges correctly as to ex- pert testimony, and counsel desire fuller instructions, they should request them. 9 So, a charge to the effect that the jury will be governed by the weight of the evidence, with- out calling special attention to the testimony of experts, is not erroneous, especially where no request, written or verbal, is made calling attention to that species of evi- dence. 10 § 373. Instructions as to expert witnesses in general. The court may properly instruct that "the opinions of medical experts are to be considered * * * in connec- tion with all the other evidence in the case, but you [the jury] are not bound to act upon them, to the exclusion o'f all other evidence." 11 And, according to many decisions, an expert witness is to be judged from the same standpoint it may be of little worth. It may patrick v. Haley, 6 Colo. App. 407, be conclusive, or it may be not 41 Pac. 508; Epps v. State, 102 Ind. even persuasive. Its weight will be 539; Guetig v. State, 66 Ind. 107. determined by the character, the ca- 8 — Anthony v. Stinson, 4 Kan. paeity, the skill, the opportunities 211; Flynt v. Bodenhamer, 80 N. C. for observation, and the state of 208; Aetna Life Ins. Co. v. Ward, mind of the experts themselves, as 140 U. S. 76, 35 L. Ed. 371. seen and heard and estimated by the 9 — Bertody v. Ison, 69 Ga. 317. jury, and, it should be added, by the 10 — City of Atlanta v. Champe, 66 nature of the case and all its de- Ga. 660. veloped facts." Louisville, N. O. 11 — Wagner v. State, 116 Ind. & T. Ry. Co. v. Whitehead, 71 Miss. 181; Epps v. State, 102 Ind. 539; 451, 42 Am. St. Rep. 472. Goodwin v. State, 96 Ind. 550; Gue- 7— Alabama G. S. R. Co. v. Hill, tig v. State, 66 Ind. 107. 93 Ala. 514, 30 Am. St. Rep. 65; Kil- § 373] Credibility and Probative Foece of Evidence. 811 as any other witness, and the jtiry are to apply the same general rules to the testimony of experts as are applicable to the testimony of any other witness in determining its Aveight and credibility, and an instruction so directing the jury is not improper. 12 It is proper to instruct the jury to take into consideration the means and opportunity of ac- quiring knowledge possessed by experts, as shown by the evidence, in estimating the weight which they should give to other testimony. 13 An instruction that the opinions of expert witnesses are not necessarily conclusive, and that the jury, from all the facts and circumstances, should determine an issue, giving the weight to the experts' testimony which they were deemed entitled to, in view of their knowl- edge and skill as disclosed by the evidence, is proper. 14 But it is improper to charge that the jury shbuld consider the skill of the expert, and value his testimony accordingly, as this gives undue prominence to the skill of the expert, and ignores his credibility as exhibited by his conduct on the witness stand. 15 $o, an instruction which 12 — Arkansas. Williams v. State, Missouri. Thompson v. Ish, 99 50 Ark. 511. Mo. 160, 17 Am. St. Rep. 552n; California. Haight v. Vallet, 89 Hampton v. Massey, 53 Mo. App. Cal. 245, 23 Am. St. Rep. 465, 26 501. Pac. 897. New York. Brehm v. Great Indiana. Epps v. State, 102 Ind. Western Ry. Co., 34 Barb. 256. 539; Cuneo v. Bessoni, 63 Ind. 524; Oregon. Langford v. Jones, 18 Eggers v. Eggers, 57 Ind. 461. Ore. 307, 22 Pac. 1064. Kansas. Ball v. Hardesty, 38 Vermont. Thornton's Ex'rs v. Kan. 540, 16 Pae. 808; Shellabarger Thornton's Heirs, 39 Vt. 122. v. Thayer, 15 Kan. 619. United States. Carter v. Baker, 1 Louisiana. Chandler v. Barrett, Sawy. 525, Fed. Cas. No. 2,472. 21 La. Ann. 58, 99 Am. Dee. 701. 13 — State v. Hinkle, 6 Iowa 380; Michigan. Rivard v. Rivard, 109 Wells v. Leek, 151 Pa. St. 431; Aet- Mieh. 98, 63 Am. St. Rep. 566; Turn- na Life Ins. Co. v. Ward, 140 IT. S. buU v. Richardson, 69 Mich. 400; 76, 35 L. Ed. 371. Maynard v. Vinton, 59 Mich. 139, 14-r-Lang v. Marshalltown Light, 60 Am. Rep. 276n. Power & Railway Co., — Iowa — , Mississippi. Louisville, N. O. & 147 N. W. 917. T. Ry. Co. v. Whitehead, 71 Miss. 15— Blough v. Parry, 144 Ind. 463. 451, 42 Am. St. Rep. 472. 812 Instructions to Jueies. [§ 373 ignores the opportunities of the expert for knowledge, his aptitude, and his skill, and which places too much stress upon his experience, is also erroneous. 16 An instruction that the testimony of certain experts is entitled to more weight than the testimony of other experts, should be refused. 17 An instruction that a medical or sci- entific book introduced in evidence, "is entitled to as much authority as a witness," is in violation of a statute forbid- ding the judge to comment on the weight of evidence. 18 Where some of the expert witnesses pointed out the facts upon which they based their opinions, and others did not, a refusal to charge that the facts have greater weight than the opinions is not erroneous, as such instruction was on the weight of the evidence, and would have invaded the province of the jury. 19 v Where the court disclaims any intention of express- ing an opinion on the testimony, it is not error to call the attention of the jury to the testimony of experts on each side, and direct them to consider it and the reasons on which the experts based their opinions. 2 *! A general instruction given to aid the jury to know the value of, or weight to be given to, testimony of certain experts, where their opinions are based on facts drawn from other evidence, and not from their personal observation, is not objectionable as impliedly depreciating the value of the testimony of an expert of little experience, as compared v with another witness in the case. 21 It is error to say that, while the medical experts introduced by defendant were admissible in law as witnesses, they were not entitled to credit, while on the other hand, when experts are appointed by the state, or by referees agreed on by the parties, and 16— Cuneo v. Bessoni, 63 Ind. 524. 19— Breek v. State, 2 Ohio Cir. 17 — Bever v. Spangler, 93 Iowa Deo. 477. 576. . 20— Com. v. Barner, 199 Pa. 335. 18— Melvin v. Easly, 46 N. C. 386, 21— Powell v. Chittick, 89 Iowa 62 Am. Dec. 171. 513. § 373] Credibility and Probative Force of Evidence. 813 when such examinations made by such experts are not ex parte, but conducted with notice to the opposite party, then the testimony is entitled to great weight. 22 If the opinions of experts are manifestly in conflict with the estab- lished facts of the case, they cannot overcome such facts, and the jury may be so instructed. 23 So, where a witness testified to seeing a note signed, there was no error in in- structing that expert evidence as to the handwriting should not overcome the testimony of a credible witness who testi- fied from personal knowledge. 24 It is error to instruct that the way for the accused "to contradict the testimony of experts is by the introduction of testimony of the same class of men, — that is, of experts, — to show the thing to be different; and, as a principle of law, you have no right to dis- regard the testimony of credible witnesses, — experts, — if the witnesses are credible, and substitute for them your own opinions or notions, without proof. ' ' Such an instruc- tion in effect tells the jury that the accused, no matter what his financial circumstances are, must employ experts on penalty that the testimony of the experts for the state shall be considered binding upon the jury. 25 Where the question being considered is whether a defect in a plank was obvious, and whether proper inspection of the plank would have disclosed the defect, it is proper to instruct the jury that they have ' ' a right, from all the cir- cumstances in the case,- and from their inspection of the - piece exhibited, to determine what, in all probability, the other side or, end of the plank would show if produced; that the jurymen had a right to use their experience of lumber of this kind, and supply, as far as that experience and their good judgment went, the missing portion of the plank; that they were not restricted to the testimony of 22 — Persons v. State, 90 'Tenn. 291. 24 — Bruner v. Wade, 84 Iowa fi98. 23— Treat v. Bates, 27 Mich. 390; 25— People v. "Vanderhoof, 71 Brown v. Busch, 45 Pa. St. 61. Mich. 158. 814 Instructions to 1 Jueies. [§ 373 witnesses; that they might use their own intelligence, and their own experience with lumber, and the knowledge which they brought with them into the jury room; and that it was their duty to use that information as much as the infor- mation they got from the witnesses. ' ' 2e unworthy of» credit, is not sufficient to justify a conviction without corroborating evidence, and such cor- roborating evidence, to avail anything, must be of a fact tending to show the guilt of the defendant. ' ' 8 So, it is proper to refuse to instruct that the jury cannot convict on the testimony of a witness against whom 5 — Higgins v. Wren, 79 Minn. 462. the exclusive judges of the facts, to 6 — Green v. State, 97 Ala. 59. say what degree of weight or credi- 7 — Corley v. State, 28 Ala. 22. bility shall be given to his testi- 8 — Horn v. State, 98 Ala. 23; mony. It does not lie in the mouth Moore v. State, 68 Ala. 360; Ray v. of any court to instruct the jury, as State, 50 Ala. 104. Contra, Cohen v. matter of law, that they cannot con- State, 50 Ala. 108. A curious state vict on such testimony unless it is of affairs is presented by these last corroborated; * * * an instruc- two cases. They were decided by tion by the court defining the effect the same tribunal, and are in direct to be given their statements is an conflict, yet the last in point of time infringement upon the jury's prov- was decided within a few days after ince. ' ' Osborn v. State, 125 Ala. the former, without any reference 106, citing Lowe v. State, 88 Ala. or allusion thereto. Though "the 8; Jordan v. State, 81 Ala. 20; Moore character of a witness is assailed, or v. State, 68 Ala. 360; Grimes v. he is otherwise impeached as being State, 63 Ala. 166; Addison v. State, unworthy of credit, it is entirely 48 Ala. 478. within the province. of the jury, as 830 Instructions to Juries. [§ 379 impeaching testimony has been offered, 9 especially where there has been some corroborating testimony; 10 or that, ' ' when a witness was heard by a jury, who was neither im- peached nor contradicted, whose story was credible, and in whose manner there was nothing to shake their confidence, they were bound to believe him;" 11 or that "the jury should throw aside the testimony of such witness [who had been successfully impeached], and not consider it, except in so far as it may be sustained or corroborated by other testi- mony in the case;" 12 or that "the testimony of. an im- peached witness is to be taken with great care by the jury, and, unless fully corroborated, the jury will be justified in giving to it no weight whatever, and it is only on such points as such witness may be corroborated that the witness is entitled to credence and weight with the jury." 13 Where there was no corroboration of a witness whose testimony at the trial was contrary to that given by him before the grand jury, it was error to charge that, if the witness had been impeached and restored to the confidence of the jury, he should be believed in preference to the im- peaching testimony. 14 An instruction that, although the jury "may believe from the evidence, beyond a reasonable doubt, that the witness for the state may have a bad repu- 9 — Spicer v. State, 105 Ala. 123. natural or physical law. See also, 10 — Gilyard v. State, 98 Ala. 59. Smith v. State, 63 Ga. 168, where a 11 — State v. Smallwood, 75 N. C. charge similar to that set out in 104; Noland v. McCracken, 18 N. G. the text was approved. 594. Contra, Rowland v. Plummer, 12 — Addison v. State, 48 Ala. 478. 50 Ala. 182, where a similar charge 13 — Green v. Cochran, 43 Iowa was approved. This decision is pal- 544. Contra, White v. Cook, 73 Ga. pably erroneous. The reviewing 169, where the following charge was court considered that this was not approved: "Witnesses may be im- a charge on the "effect of the evi- peached by the proof of contradic- dence, " but it is hard to conceive tory statements. Witnesses, when on what they based their opinion. impeached, should not be believed According to this decision, the jury unless corroborated. It is for you would be bound to believe the tes- to say whether any attempt at im- timony of an unimpeached and un- peachment has been successful." contradicted witness, though it was 14 — Plummer v. State, 111 Ga. in contradiction of some well-known 839. § 380] Credibility and Probative Force of Evidence. 831 tation for truth and veracity, still you may give full faith and credit to his testimony, and convict the defendant on the testimony of said witness without corroboration," is erroneous, because it practically instructs the jury to give full faith and credit to the testimony of the impeached witness, and to convict on it without corroboration, and does not even require, as a prerequisite, that they should believe the testimony. 15 §380. Propriety or necessity of instructing as to appli- cation of maxim "falsus in uno, falsus in om- nibus." According to a number of decisions, the propriety of giving an instruction as to the maxim "falsus in uno, falsus in omnibus," in any particular case must be left largely to the judgment and discretion of. the trial court; 16 and others hold that under no circumstances can the court be required to give such an instruction, 17 and that it makes no difference that there is evidence to which such instruc- tion would be applicable. 18 In other decisions it has been held that, where the facts in evidence warrant it, the refusal or failure to give such an instruction is reversible error. 19 An instruction as to the maxim is improper unless war- ranted by the evidence. 20 There must be something in the 15— Snyder v. State, 78 Miss. 366. 23 Mo. 77; State v. Perry, 41 W. Va. 16— State v. Hiekam, 95 Mo. 322; 641. Sampson v. St. Louis & S. F. R. Co., 20 — There must be a sufficient 156 Mo. App. 419; McCormick v. basis in the testimony to warrant City of Monroe, 64 Mo. App. 197; the giving of the charge. Merri- Paddock v. Somes, 51 Mo. App. 320. weather v. Sayre Min. & Mfg. Co., 17 — State v. Banks, 40 La. Ann. 161 Ala. 441; State v. Palmer, 88 736; James v. Mickey, 26 S. C. 270. Mo. 568; White v. Maxcy, 64 Mo. 18— State v. Hiekam, 95 Mo. 322, 552; Sampson v. St. Louis & S. P. 6 Am. St. Rep. 54; Paddock v. Somes, R. Co., 156 Mo. App. 419; James v. 51 Mo. App. 320. Mickey, 26 S. C. 270; Ingalls v. 19 — Merriweather v. Sayre ■ Min. State, 48 Wis. 647. & Mfg. Co., 161 Ala. 441; Plummer If there is no evidence on which v. State, 111 61— State v. Meyers, 59 Ore. 537, 117 Pac. 818. 840 Instructions to Jtjbies. [§ 382 your duty -to * * * distrust the entire evidence of such witness," it is not error for the court to add to such instruction the admonition to scan closely the testimony of such witness. 03 Where the court has instructed, in the language of the statute, that "a witness false in one part of his or her testimony, as the case may be, is to be dis- trusted in others," the court may further charge: "And if you find that any witness in this case has willfully testi- fied falsely to any material matter in the case, you have a right to entirely disregard and cast aside the testimony of such witness." * An instruction that it is the "duty" of the jury to distrust the entire testimony of a witness who h&s sworn falsely to a material part thereof, is erro- neous. 65 § 383. Element of intent to swear falsely. An instruction to disregard false testimony must be con- ditioned on the witness wilfully or knowingly swearing falsely, 66 and the omission of the qualifying words "wil- fully and corruptly" is error. 67 A false statement by a 63 — People v. Harlan, 133 Cal. 16, ing must have been intentionally and 65 Pae. 9. corruptly done is erroneous. State 64 — People v. Arlington, 131 Gal. v. Wofford, — Miss. — , 56 So. 162. 231, 63 Pae. 347. An instruction that, if "any wit- 65-r— People v. Delucchi, 17 Cal. ness has sworn falsely in regard to App. 96, 118 Pae. 935. any material fact in issue, they are 66 — Gillespie v. Hester, 160 Ala. at liberty to disregard his entire evi- 444; Herrin & S. B. Co. v. Nolte, dence, " is erroneous for omitting the 243 111. 594; Lancaster v. Bartseht, WO idL " w iif u iiy" r "knowingly," 152 111. App. 533; Peterson v. Pusey, r words of similar import: 141 111. App. 578, aff'd 237 111. 204; a^^. Gi i lespie v . Hester, 160 Geringer v, Novak, 117 111 App. 160; Ma _ Qhms y _ ?6 ^ Beck v. People ex rel. Etter, 115 _ . 111. App. 19; Perkins v. Knisley, 102 9 % J™ V " J Sta e ' 63 £* "J" 111. AM. 562, rev'd 204 111. 275. . <^fornia. People v. Strong, 30 Instructions as to the maxim under Cal - 156 " Centre Peop i e v . Ei . consideration should embody the ele- S hetti > 66 Cal - 184 > 4 Pao - 1063 > "86. ment of intent. Gottlieb v. Hart- Georgia. Skipper v. State, 59 Ga. man, 3 Colo. 53. 63 ! McLean v. Clark, 47 Ga. 25. 67— Howell, v. State, 98 Miss. 439. Mississippi. White v. State, 52 An instruction omitting /the quali- Mips. 216. fying clause that the false - swear- Missouri. State v. Lett, 85 Mo. § 383] Credibility and Probative Force of Evidence. 841 witness, though it may affect his- credibility, does not re- quire that his entire testimony should be discarded by the jury, unless it was known by him to be false, or was made with intent to deceive or mislead. 68 And an instruc- tion that the jury may conclude that the entire testimony of a witness is false if they believe that' he has sworn falsely upon any one point, is properly refused as not dis- tinguishing between testimony which is false merely, and testimony which is knowingly and wilfully false, 69 for the rule is not applicable to a case of mere mistake. 70 An instruction using the word "and" instead of "or" be- tween the words "wilfully" and "corruptly" has been held not objectionable. 71 And an instruction that if the jury be- lieve that any witness has "wilfully and corruptly" sworn falsely as to any material thing, etc., is not erroneous in using the quoted words in place of "knowingly." 72 A requested instruction that "the jury have no right to disregard the testimony of a witness where such testimony is not contradicted, and such witness has not been im- peached," has been held erroneous. 73 So, an instruction that if the jury "believe that any of the witnesses swore falsely or were mistaken, then they are at liberty to dis- regard the whole or any part of such witnesses' testimony, is erroneous. 74 An instruction that, "if the circumstances respecting which testimony is discordant be immaterial, and of such a nature that mistakes may easily exist, and be accounted 52; State v. Brown, 64 Mo. 367; 134; Little v. Superior Rapid Transit Iron Mountain Bank of St. Louis By. Co., 88 Wis. 402. v. Murdock, 62 Mo. 70; Paulette v. 68— Childs v. State, 76 Ala. 93. Brown, 40 Mo. 52; Blitt v. Heinrich, 69 — Skipper v. State, 59 Ga. 63. 33 Mo. App. 243; Smith v'. Wabash, 70— State v. Lett, 85 Mo. 52. St. L. & P. By. Co., 19 Mo. App. 71— Hanchett v. Haas, 219 111. 546, 120; Evans V. St. Louis, I. M. & S. aff'g 125 111. App. 111. By. Co., 16 Mo. App. 522. 72 — Turner v. State, 95 Miss. 879. New york. Jennings v. Kosmak, 73 — W. G. Wood Co. v. Nyse- 20 Misc. 300. wander, 187 111. App. 354. Wisconsin. Cahn v. Ladd, 94 Wis. 74 — State v. Elkins, 63 Mo. 159. 842 Instructions to Jubies. [§ 383 for in a manner consistent with the utmost good faith and probability, there is much reason for indulging the belief that the discrepancies arise from the infirmity of^mind, rather than from deliberate error. If, however, a witness, with intent to deceive, falsely testifies as to a material fact, which the witness knows to be absolutely false, then you can apply to the testimony of the witness the maxim, 'falsus in uno, falsus in omnibus.' If you find that either one of these parties — the complaining witness or the de- fendant — has falsely and intentionally testified to a mate- rial fact in this case, which is not true, that this has been done intentionally, falsely, knowing it to be untrue, you are at liberty to apply this maxim to such testimony," — in effect cautions the jury that, in the absence of motive and wilful intent to deceive, by testifying falsely to a material fact known at the time to be absolutely false, discrepancies, though material, should be attributed to mistake, misapprehension or the infirmity of the mind, and when thus accounted for, the maxim, "false in one thing, false in all things, ' ' should not be applied, and such an in- struction is clearly within the discretion of the court to give. It is not necessary to add to such an instruction the phrase, "unless corroborated by other credible evidence in the cause, or by facts and circumstances proved at the trial." 75 §384. Element of materiality of . testimony. An instruction to disregard testimony, which omits the element that such testimony must be as to a material fact, is erroneous. 76 Where the court instructs that if the 75 — State v. Sexton, 10 S. D. 127. App. 278; Weddemann v. Lehman, 76 — Cummins v. Cleveland, C, C. Ill 111. App. 231; Junction Min. Co. & St. L. Ry. Co., 147 111. App. 291; v. Goodwin, 109 111. App. 144. People V. Peltz, 143 111. App. 181; An instruction that the jury have Hughes v. Ferriman, 119 111. App. the right to disregard testimony of 169; Geringer v. Novak, 117 111. App. a witness who has wilfully testified 160; Rautert v. Carlson, 116 111. App. falsely, is properly refused' when it 260; Bickerman v. Tarter, 115 HI. fails to use the necessary qualifying § 384] CREDIBILITY AND PeOBATIVE FoBCE OF EVIDENCE. 843 jury believe any witness has wilfully sworn falsely as to any of the facts mentioned in the other instructions as bearing upon the claim sued on or the defense thereto, they may entirely disregard his testimony, the instruction is not objectionable as not confining the false swearing to mate- rial facts. So, instructions that the jury may entirely dis- regard the testimony of any witness whom they may be- lieve to have sworn falsely as to any fact in the case has been held not objectionable as failing to restrict its effect to false testimony regarding material matters. 77 And in- structions as to the effect of knowingly testifying falsely as to a material fact need not state that the fact must be material to the issues. 78 An instruction that the testimony of one credible witness is entitled to more weight than the testimony of many others, has been held bad, as amounting to an instruction that the. testimony of such a witness is entitled to more weight than the others, upon the theory that such other witnesses have testified untruthfully, with- out limiting such untruthfulness to facts or questions mate- rial to the issue. 79 words " in a material matter. ' ' Peo- the jury believe that any witness pie v. Ford, 25 Cal. App. 388, 143 has wilfully sworn falsely as to Pac. 1075. any of the facts mentioned in the The maxim is not applicable unless instructions, they may, ' ' etc., is the false testimony relates to some erroneous, as being too restrictive, material matter, and therefore in in- since, if any witness swears falsely structing as to this maxim it is error to any material fact, whether men- to omit the element of materiality: tioned in the instructions or not, Alabama. Cobb v. State, 115 Ala. the jury should disregard his testi- 18. mony. Hansberger v. Sedalia Elec. Georgia. Pierce v. State, 53 Ga. Eailway, Light & Power Co., 82 Mo. 365; McLean v. Clark, 47 Ga. 25. App. 566. Illinois. Peak v. People, 76 111. Nevada. Moresi v. Swift, 15 Nev. 289; West Chicago St. E. Co. v. Raf- 215. tery, 85 111. App. 319; Coggins v. 77— People v. Ah Sing, 95 Cal. 654, Chicago & A. R. Co., 18 111. App. 30 Pac. 796. 620. 78— Hoxie v. Pfaelzer, 167 111. Mississippi. White v. State, 52 App. 79. Miss. 216. 79— West Chicago St. E. Co. v. Missouri. An instruction that, ' ' if Eaftery, 85 111; App. 319. 844 Instructions to Jtjeies. [§ 385 §385. Instructions making corroboration a condition of belief. In general, it is proper to charge that if a witness has wilfully sworn falsely as to any material matter, the jury are at liberty to disregard his testimony unless corrobo- rated by other credible evidence, 80 and an instruction dis- regarding the possibility of corroboration is erroneous. 81 An instruction that the jury may disregard the whole testi- mony of a witness who has wilfully and knowingly sworn falsely as to one matter, has been held erroneous because the words "unless corroborated" were omitted. 82 And in another case the rule was laid down that, if there is no evi- dence tending to corroborate a witness, it is not error to instruct that, if the jury believe that a witness has wilfully sworn falsely upon any material point, they have the right to disregard his entire testimony. 83 In some cases it has been held"that an instruction that the jury may disregard the testimony of any witness who has wilfully testified falsely to a material fact is rendered erro- neous by the addition of the words, "unless corroborated," or words of similar import, on the ground that the province of the jury is thereby invaded. 8 * Thus it has been said that "it is true, as a legal proposition, that, if a witness has will- so — Illinois. Bevelot v. Lestrade, Wyoming. Bunop v. McMahon, 6 153 111. 632; Eider v. People, 110 111. Wyo. 24, 42 Pae. 23. 13; Bowers v. People, 74 111. 418; 81 — Humphreys v.. Smith, 133 Ga. Sanders v. Illinois Cent. B. Co., 90 456; Szymkus v. Eureka Fire & HI. App. 582. Marine Ins. Co., 114 111. App. 401. Indiana. Robertson v. Monroe, 7 82 — Peak v. People, 76 111. 289; Ind. App. 470. Meixsell v. Williamson, 35 111. 529. Iowa. Blotcky v. Caplan, 91 Iowa 83 — Howard v. McDonald, 46 111. 352. 123. Nebraska. Walker v. Haggerty, 84 — Brown v. Hannibal & St. J. B. 30 Neb. 120. Co., 66 Mo. 600; Wastl v. Montana New Mexico. Faulkner v. Terri- Union R. Co., 17 Mont. 213, 42 Pae. tory, 6 N. M. 464, 30 Pae. 905. 772; State v. Musgrave, 43 W. Va. Utah. State v. Morris, 40 Utah 672. See also, Minich v. People, 8 431, 122 Pae. 380, Colo,, 440, 9 Pae. 4, where the. court Washington. Lyts v. Keevey, 5 said: "We are told that this in- Wash. 606, 32 Pae. 534. struction is wrong, because it did not §385] Credibility and Peobative Force of Evidence, 845 fully sworn falsely as to a material fact, the jury are at liberty to disregard his entire testimony, notwithstanding he may have been corroborated as to that or any other fact to which he testified. ' ' 85 The decisions sustaining this doctrine are in the minority, and the minority rule has been disapproved, 86 it having been held that such an instruction does not invade the province of the jury. 81 It is error to instruct that the jury are bound to accept as true the testimony of a witness whom they believe has testified falsely on any material matter when such witness is corroborated by other credible testimony. 88 If the jury believe a- witness has wilfully falsified in any particular, they are not required to credit him in other matters, unless convinced that he has, as to such matters, sworn truly. As they know he will not be restrained by his oath, they must judge for themselves how far, if at all, corroboration in some particulars renders it safe to believe him. The court cannot require them to credit testimony, under any circum- stances, against their own conclusions from it. 89 It is not contain a qualification concerning 85 — Brown v. Hannibal & St. J. corroborating testimony. It is said B. Co., 66 Mo. 599. that, if a witness wilfully testifies 86 — State v. Morris, 40 Utah 431, falsely to a material fact, but his 122 Pac. 380. testimony as to other material mat- 87 — An instruction as to disregard- ters is supported by corroborating ing testimony of a witness who has proofs or circumstances, the jury wilfully sworn falsely, " except as he should be told that they need not ma y have been corroborated by cred- d'iseard it in so far as it relates to ible witnesses or evidence/' is not such other matters. This position objectionable in that the court in- , . , , , vades the province of the jury, would perhaps be correct should a „ ./ . .. TT . , .„ n ,„„ r e , , , , . , , . - State v. Morris, 40 Utah 431, 123 court assume the doubtful authority p „„ n of directing the jury that they must ^g—Havill v. State, 7 Okla. Cr. disregard the entire evidence of a £2 121 Pac 794 witness wilfully testifying falsely to 89— Hamilton v. People, 29 Mich. one material fact; but it is not cor- yj^ rect in cases like the present, where ^n instruc tion that the jury may the court simply suggests that the disregard the testimony of any wit- jury may disregard, or that they are neS s whom they believe' from the evi- at liberty to disregard, the testimony dence has testified falsely, except in of such witness." so far as his testimony is corrobo- 846 Insteuctions to Jubies. [§ 385 reversible error to give an instruction that if any witness has wilfully testified falsely to any material fact his testi- mony may be disregarded, except in so, far as he may be corroborated by other testimony in the case, without also adding corroboration by "facts and circumstances." 90 A requested charge that if the jury believe from the evi- dence that any witness has wilfully or knowingly sworn falsely to any material element of the case, or "wilfully or knowingly exaggerated" any fact material to the issues for the purpose of deceiving the jury, they have the right to reject the entire testimony of such witness, except in so far as corroborated by other evidence, "which they believe" or by facts appearing in the case, is improper. 91 An instruc- tion that the jury may reject all testimony of witnesses, etc., unless c®rroborated "by the statements of other cred- ible witnesses, ' ' was held erroneous on the ground that cor- roboration by any credible evidence, or by facts fairly in- ferable therefrom, is sufficient. 92 An instruction that the entire testimony of a witness who has knowingly sworn falsely may be rejected, unless corroborated by other evi- dence, has been held improper, 93 and it has also been held error to give an instruction that if the evidence is untrue or unreliable, all the testimony of such witness may be dis- believed or believed in part. 94 It has been held improper to instruct the jury that a wit- ness who has wilfully testified falsely to a material matter is entitled to no credit unless corroborated, 95 or is "not to be believed in anything he swears to, unless corroborated. ' ' 90 rated by other evidence or facts and 92 — P. Dohmen Co. v. Niagara circumstances in the case, should not Fire Ins. Co., 96 Wis. 38. be given, as the jury cannot be 93 — Zoeller v. Schmitz, 172 111. bound by the court to believe the App. 167; Souleyret v. O'Gara Coal testimony of such witness whether Co., 161 111. App. 60. corroborated or not. McKnight v. 94 — Stephens v. Blkins, 169 111. State, 7 Okla. Cr. 235, 122 Pac. 1118. App. 269. 90 — Christo v. Nicola, 183 111. App. 95 — Senter v. Carr, 15 N. H. 351. 487. 96 — Mercer v. Wright, 3 Wis. 645. 91 — Simpson v. Peoria Ey. Co., 179 111. App. 307. § 385] Credibility and Probative Foece of Evidence. 847 In support of these conclusions it is said: "It is true, as a general rule, that, when a witness deliberately and know- ingly swears falsely in regard to one material fact, the jury are not bound to believe him in any of his statements unless he is corroborated; but it is wrong to say that the jury are not at liberty to believe him. The maxim, 'falsus- in uno, falsus in omnibus/ does not operate to preclude the jury from believing the witness if they choose to do so. The jury may believe any competent witness, though in many instances they ought not. ' ' 97 There are, however, a number of decisions which take the opposite view. Thus it has been held proper to charge that, if a witness has wilfully sworn falsely in reference to any material transaction, the jury should ' ' give no weight ' ' to such testimony unless corroborated, 98 or to disregard the evidence unless corroborated; 99 and it has been held error to fail to charge in a proper case that, if a witness wilfully and knowingly swear falsely as to a material matter, his testimony ought to be disregarded entirely unless corrob- orated. 1 So, it has also been held that, if a witness know- ingly and wilfully swears falsely to a material matter, his testimony should be rejected entirely unless corroborated by the facts and circumstances of the case, or other cred- ible evidence, and that it is not proper to charge that credit may be given to such a witness, without also stating the necessity for corroboration. 2 And in another case, decided by the same court, a request for an instruction that, if a witness was guilty of knowing and wilful perjury in one particular, or upon one point, the jury were to conclude that he is false in the whole of his statements, was held to have been properly refused, because no allowance was made for corroboration. 3 97— Mercer v. Wright, 3 Wis. 645. 99— Maehette v. Wanless, 2 Colo. 98 — State v. McCartey, 17 Minn: 169. 76 (Gil. 54). In this case it was 1 — Plummer v. State, 111 Ga. 839. further held proper to refuse an in- 2 — Pierce v. State, 53 Ga. 365. struction not to consider such wit- 3 — Ivey v. State, 23 Ga. 576. ness' testimony at all. 848 Instructions to Juries. [§385 An instruction requiring corroboration to be by more' than one witness is. erroneous, 4 and it is also error to require the corroboration to be by " credible witnesses. ' ' 5 § 386. Evidence of character. Proof of good character should always be considered in determining the guilt or innocence of an accused, 6 without reference to the apparently conclusive or inconclusive char- acter of the other evidence. 7 Evidence of the good char- acter of the prisoner is of value, not only in doubtful cases, but also when the testimony tends very strongly to establish the guilt of the accused. 8 Such evidence is not a mere makeweight thrown in to assist in the production of a result that would happen at all events, but it is positive evidence, and may of itself, by the creation of a reasonable doubt, produce an acquittal. 9 Evidence of the general char- 4 — Junction Min. Co. v. Goodwin, 109 111. App. 144. 5 — Hughes v. Ferriman, 119 111. App. 169. 6 — Arkansas. Ware v. State, 91 Ark. 555. California. People v. De La Cour Soto, 63 Cal. 165; People v. Bell, 49 Cal. 485. Illinois. Creed v. People, 81 111. 569. Indiana. Holland v. State, 131 Ind. 572; McQueen v. State, 82 Ind. 74; Kistler v. State, 54 Ind. 400. Iowa. State v. Lindley, 51 Iowa 344; State v. Horning, 49 Iowa 158. Michigan. People v. Mead, 50 Mich. 228. Mississippi. Hammond v. State, 74 Miss. 214. Missouri. State v. McNamara, 100 Mo. 100; State v. McMurphy, 52 Mo. 251. New York. Eemsen v. People, 57 Barb. 324. North Carolina. State v. Henry, 50 N. C. 65. Ohio. Stewart v. State, 22 Ohio St. 478. Oklahoma. Dickinson v. State, 3 Okla. Cr. 151, 104 Pac. 923. Oregon. State v. Porter, 32 Ore. 135, 49 Pac. 964. South Carolina. State v. Tarrant, 24 S. C. 593. Wisconsin. Robinson v. State, 143 Wis. 205. United States. Edgington v. United States, 164 U. S. 361, 41 L. Ed. 467. 7— Kistler v. State, 54 Ind. 400. 8 — Remsen v. People, 43 N. Y. 6, rev'g 57 Barb. (N. Y.) 324. 9 — Alabama. Felix v. State, 18 Ala. 725. California. People v. Bell, 49 Cal. 485. New York. Remsen v. People, 43 N. Y. 6; People v. Friedland, 2 App. Div. 332. Oregon. State v. Porter, 32 Ore. 135, 49 Pac. 964. Pennsylvania. Heine v. Com., 91 Pa. St. 145. . § 387] CREDIBILITY AND PROBATIVE FORCE OF EVIDENCE. 849 acter of the accused, having reference and analogy to the charge, is competent, as original testimony, 10 and its effect as primary evidence should not be denied by an instruc- tion. 11 The reason for this is obvious. To hold that a man's general good character is only evidence in cases where there is doubt is equivalent to holding that he shall derive no benefit from it as evidence in a criminal case; for if the jury entertain a reasonable doubt as to his guilt, they will give him the benefit of such doubt, and acquit, aside from proof of his good character. 12 § 387. Necessity of instructions on character. A few courts haye held that it is not proper to charge at all on the question of good character on the theory that to do so is singling out and charging on the weight and effect of evidence and is invading the province of the jury. But the majority of the courts hold that it is the duty of the court when requested, to charge on the subject or ques- tion of good character. 13 The reasons in favor of the ma- jority rule are that jurors can hardly be expected to apply evidence of good character, understand, the purpose for which it may be considered and its legal effect, and the danger of incorrect inferences and illogical conclusions, if not aided by the court. 14 In the absence of a request, it has been held that no instruction on this subject need be given; 1B and if defendant asks an improper instruction on the subject of character, he cannot complain if none at all 10— Felix v. State, 18 Ala. 725. 605; People v. Elliott, 163 N. Y. 11, 11— People v. Friedland, 73 N. T. rev'g 43 App. Div. (N. Y.) 621. St 516, 37 N. Y. Supp. 974. 14— State v. Brown, 39 Utah 140, 12— Felix v. State, 18 Ala. 725. Ann - Cas - 1913 E ln > 115 Pae - 9»*- 13 — State v. Brown, 39 Utah 140, 15 — State v. Peterson, 38 Kan. 204, 16 Pae. 263; State v. Me- Ann. Cas. 1913 E In, 115 Pae. 994, ^^ m Mq ^ In case defendant has produced The court need not instruet as to evidence to show good character, he g00( j character in a misdemeanor is entitled, on request, to an in- case where an instruction on such struction stating the effect of such subject is not requested. State v. evidence. State v. Swain, 68 Mo. Kimmell, 156 Mo. App. 461. Blashfield Vol. 1—54 850 Instructions to Jueies. [§ 387 is given. The law requiring the court to declare the law- applicable to the case, whether proper instructions are asked for or not, does not comprehend such merely col- lateral matters; 16 and a refusal to give a proper instruc- tion on good character is not error, though an improper one has been asked and refused. 17 It has also been held that, if a charge as to good character is not sufficiently specific, error cannot be predicated thereon unless a more -specific charge is requested. 18 ' So, instructions on good character which have already been given in substance may properly be refused. 19 Where the court has charged that, "if the evidence satis- fies you in this case that this defendant is a man of good character and of peaceable habits, why, you should take that into consideration with all the other evidence in the case, and all the surrounding facts and circumstances, and give it just such weight as you think it;is justly and prop- erly entitled to," and that "a reasonable doubt may arise out of the evidence of good character, where a party charged with a criminal offense offers evidence tending to show that he has heretofore borne a good character. That, in itself, will sometimes create in the minds of a jury that reasonable doubt, to the benefit of which I have already, told you the defendant is entitled if it exists in this case," — it is not error to refuse to charge that ' ' evidence of good character, of itself, tends to prove that the defendant is not guilty of the offense charged. ' ' 20 An instruction as to character is unnecessary where there is no evidence on such matter. 21 So, where no evidence of defendant's bad character is adduced, the court does not 16 — State v. McNamara, 100 Mo. 19 — People v. Johnson, 61 Cal. 100. 142; Com. v. Wilson, 152 Mass. 12. 17— State v. McNamara, 100 Mo. 20— People v. Spriggs, 58 Hun (N. 100. Y.) 603, 11 N. Y. Supp. 433. 18— Franklin v. State, 69 Ga. 36, 21— People^. Cruse, 24 Cal. App. 47 Am. Rep. 748. See also, Keys v. 497, 141 Pae. 936; Addison v. Peo- State, 112 Ga. 392, 81 Am. St. Rep. pie, 193 111. 405; Williams v. People, 63. 166 111. 132. § 388] Credibility and Peobative Force of Evidence. 851 err in failing to instruct the jury that evidence of defend- ant's bad character goes only to his credibility as a witness, and is not evidence of his guilt. 22 Where the only evidence of the character of defendant is that he is a quiet and peace- able man, and there is no attempt at impeachment of the defendant, and, consequently, evidence of his character for veracity could not have been introduced by him, an instruc- tion that the jury "may look to the fact, if it be a fact, that defendant is a man of good character, in determining what weight they will give to the testimony of the defendant," and "that, in the light of the argument of counsel for the prosecution that the defendant's testimony is not to- be be- lieved because of his interest, and that, therefore, the de- fendant would willfully testify falsely in the case, the jury may look to the fact, if it be a fact, that the defendant is a man of good general character, in determining what weight the jury will give defendant's testimony," is abstract. 23 § 388. Sufficiency of instructions as to character. An instruction which ignores the fact that the law re- quires the jury in considering the good character of a defendant to do so along with the other evidence in the case, is erroneous. 24 Where defendant introduces evidence of good character, which the prosecution does not attempt to rebut, it has been held prejudicial error for the court to instruct that, while the law permits him to make such proof, - the people are prohibited from showing his bad character. 25 But the court may instruct "that it is competent for the prisoner to avail himself of his former good character, if it existed, by proof of the fact; and, if he offers no such testimony, it is not competent for the government to show it was not good, if there is no intimation that an inference 22 — State v. Furgerson, 162 Mo. 24 — Allen v. State, 8 Ala. App. 228. 668. 25 — People v. Marks, 90 Mich. 23— Bodine v. State, 129 Ala. 106. 555. 852 Instructions to Jtjkies. [§ 388 prejudicial to the accused should be drawn by the jury from his omission to offer such testimony. ' ' 26 Where defendant asks an instruction that ' ' the good character of the defend- ant for honesty and integrity is a fact in the case, to be con- sidered by you in connection with all the other evidence in the case," and the court adds the following, "But such fact, like all others, must be proven by competent evidence," such instruction is correct. 27 Where there is evidence tending to show the previous good reputation of the defendant as a peaceable citizen, an instruction that "no inference can be drawn by a jury, of the intention which induced the' commission of the offense, from the previous character of the prisoner. His intention can only be determined by his acts. The law will imply a malicious intention," — is erroneous. 28 So, where it has been sought to impeach a witness both by disproving facts testified to by him, and also by proof of contradictory state- ments, and to sustain him by evidence of good character, it is error to limit the effect of such sustaining evidence by charging that, if a fact or facts testified to by a witness be disproved to the satisfaction of the jury, then evidence of general good character should not be treated as re-estab- lishing such disproved facts. 29 An instruction that, "if the jury, from all the evidence in this cause, have any doubt of the defendant's guilt, and further believe from the evidence that the defendant has for a long time and now possesses a good moral character for peace, sobriety, and honesty, then such fact of good character, coupled with the presumption of innocence which the law invokes, is sufficient upon which to find a verdict of not guilty," is erroneous, and is properly re- fused. 30 An instruction that the accused had introduced 26 — State v. Tozier, 49 Me. 404. 30 — State v. McNamara, 100 Mo. 27_People v. Velarde, 59 Cal. 457. 100. 28— People v. Casey, 53 Cal. 360. 29 — McEwen v. Springfield, 64 Ga. 159. § 388] CREDIBILITY AND PeOBATIVE FoECE OF EVIDENCE. 853 some evidence of good character, and authorizing the jury to consider it, is not erroneous because of the use of the word ' ' some. ' ' 31 An instruction containing the words, ' ' I hope you will not take into consideration the fact that he may be a prominent farmer," did not mean that the good character of the accused should not be considered, when considered as a whole, but that neither lowliness nor promi- nence of station could be a factor in the just administra- tion of the law. 32 Instructions should not be given which tend to impress the jury with the belief that evidence of good character is of no value; 33 as, for instance, "that the respondent had the right to put his good reputation before them for their consideration, 'as a kind of makeweight in his favor, if there is a pinch in the case. ' " 34 The court may properly inform the jury that good char- acter is of importance to a person charged with a crime, and that they have the right to consider whether a person would be less liable to be guilty of crime than a person of bad habits and character; 35 but an instruction that good character raises a strong presumption of innocence is erro- neous, and is properly refused. 36 ■ And so, an instruction that the reasonable effect of proof of defendant's good character is to raise a presumption that he was not guilty of the crime charged. 37 An instruction that "a witness may be discredited by showing that such witness had been living a life of moral turpitude, or of committing immoral acts, the effect and weight of such evidence in all cases to be determined by the jury," though technically incorrect, was held not error. 38 An instruction is proper which 31— Keys v. State, 112 Ga. 392, 35— People v. Harrison, 93 Mich. 81 Am. St. Rep. 63. 597. See also, Wilson v. State, 3 32— State v. Hunter, 79 S. C. 84. Okla. Cr. 714, 109 Pac. 289. 33 — People v. Pedro, 19 Misc. Eep. 36 — Wayne v. Winter, 6 McLean (N. Y.) 300; State v. Daley, 53 Vt. 344, Fed.'Cas. No. 17,304. 442, 38 Am. Eep. 694. 37— Moran v. State, 11 Ohio Cir. 34— State v. Daley, 53 Vt. 442, 38 Ct. E. 464. Am. Eep. 694. 38— Wheeler v. State, 112 Ga. 43., 854 Instructions to Juries. [§ 388 charges, in effect, that. the proof of good character was not necessarily a bar to the conviction; that it created a pre- sumption in favor of the prisoner, but that such presump- tion could be overcome by evidence of crime; and, as illustrative of that principle, said that positive evidence, if believed by the jury, would overcome the presumption aris- ing from good character, if the court has already, in sub- stance, charged that the defendant was presumed to be innocent; that, in case they had a reasonable doubt as to her guilt, they should acquit, although the evidence and circum- stances pointed to the guilt of the prisoner, and that good character might be sufficient to raise such a doubt. 39 § 389. Instructions limiting effect of evidence to doubtful cases. It has been almost uniformly held erroneous for the court, by its instructions, to limit the consideration of evi- dence of character to cases where the other evidence leaves a doubt in the minds of the jury as to the defendant's guilt, 40 and the following instructions have been held erro- neous : ' ' That good character should only be received as a 39 — People v. Brooks, 61 Hun 619, New York. People v. Friedland, 15 N. Y. Supp. 362. 73 N. Y. St. 516; Eemsen v. People, 40 — Alabama. Felix v. State, 18 43 N. Y. 6; Caneemi v. People, 16 Ala. 725. N. Y. 501; Ryan v. People, 19 Abb. Georgia. Eppa v. State, 19 Ga. Pr. 232. 102. North Carolina. State v. Henry, Illinois. Jupitz v. People, 34 111. 50 N. C. 65. 516. Ohio. Stewart v. State, 22 Ohio Indiana. Holland v. State, 131 St. 478; Harrington v. State, 19 Ind. 568. Ohio '268; Donaldson v. State, 10 Iowa. State v. Northrup, 48 Iowa Ohio Cir. Ct. R. 613. 583, 30 Am. Rep. 408; State v. Kin- Pennsylvania. Com. v. Cleary, ley, 43 Iowa 296. 135 Pa. St. 64; Heine v. Com., 91 Massachusetts. Com. v. Leonard, Pa. St. 145; Com. v. Carey, 2 140 Mass. 473, 54 Am. Rep. 485. Erewst. 406. Minnesota. State v. Holmes, 65 Utah. People v. Hancock, 7 Utah Minn. 230; State v. Sauer, 38 Minn. 170, 25 Pac. 1093. 438. Contra, Com. v. Webster, 5 Cush. Mississippi. Hammond v. State, (Mass.) 295, 52 Am. Dec. 711n. 74 Miss. 214. § 389] Credibility and Probative Force of Evidence. 855 circumstance in cases where a crime is sought to be solely established by circumstantial evidence;" 41 that "where the evidence, outside of the presumption of good character, is clear and explicit, on which no doubt can be cast, good character will only cause the jury to hesitate and think about the matter;" 42 "that good character is always of importance, and is evidence to be duly considered by the jury, and may turn the scale where there is a reasonable doubt as to the degree or grade of the crime;" 43 that "if a man is guilty, his previous good character has nothing to do with the case, but, if you have doubt as to his guilt, then character steps in and aids in determining that doubt ; " 44 "that good character may have its weight in a doubtful case, and it may have its weight in any case to this extent : that * * * if there is a question of doubt, it may de- termine the matter, in his favor;" 4B "that, in a plain case, a good character would not help a prisoner; but, in a doubt- ful case, he had a right to have it cast into the scales and weighed in his behalf;" 46 or that evidence of good char- acter is of no weight except in a doubtful case. 47 An instruction that: "Proof of the good character of the person charged with the offense is always allowed in this class of cases, and the weight to be given to it is to be determined by the jury. It is all-important in doubtful cases. Where the evidence, outside of the presumption of good character, is clear and explicit, on which no doubt can be cast, good character will only cause the jury to hesi- tate and think about the matter. The jury will always remember that a man has to commit his first crime; he 41— State v. Kinley, 43 Iowa 296. 42— People v. Hancock, 7 Utah See also, Stover v. People, 56 N. Y. 170, 25 Pac. 1093. 315, where it was held that good 43 — Com. v. Cleary, 135 Pa. St. character is to be considered on the 64, 8 L. R. A. 301n. question of credibility of direct evi- 44 — Heine v. Com., 91 Pa. St. 145. dence of guilt, the same as upon 45 — State v. Sauer, 38 Minn. 438. proof of circumstances tending to 46 — State v. Henry, 50 N. C. 65. show it, or the inferences to be 47 — Jupitz v. People, 34 111. 516. drawn from such circumstances. 856 Instructions to Juries. [§ 389 cannot commit all the crimes, if he does commit many, at once. He has to break over the rules of good: conduct for the first time some time in his life," — is erroneous as lim- iting the effect of good character to doubtful cases. 48 It is also error to instruct that ' ' evidence of previous good character may be considered by you in connection with all the other evidence given in the cause in determining whether the defendant would likely commit the crime with which he is charged ; and if you find from all the evidence in the cause, independent of the evidence of his good character, that there is a reasonable doubt, then you should give him the benefit of his good character, and acquit him. * * * If, however, you should find from all the evidence given in the cause, independent of the evidence of previous good character, that the defendant did commit the crime, or was present, aided or abetted, encouraged, counseled, directed, and assisted in the same, evidence of previous good char- acter would not avail him anything, and you should find him guilty." The effect of such instruction is to deprive the accused of the benefit of evidence of good character. 49 So, the following instruction was condemned as prohibit- ing the consideration of evidence of good character, unless the other evidence generated a reasonable doubt: "That [evidence of good character] is a legitimate subject for you to take into consideration, but it goes only to this extent : If an act which the law makes an offense has been actually committed, — if you are satisfied beyond a reasonable doubt that the prohibited act was committed, — it makes no dif- ference what the character of the man is. It is not the sub- ject of your investigation. But if the evidence should leave your minds in such a state that you cannot say that you are satisfied beyond a reasonable doubt, and if you find that the defendant has borne hitherto an unblemished charac- , ter, — such a character as makes the act inconsistent with 48— People v. Hancock, 7 Utah 49— Holland v. State, 131 Ind. 568. 170, 25 Pac. 1093. § 390] Credibility and Probative Force of Evidence. 857 his history and standing, — that circumstance should turn the scale in his favor. At such a time, the influence of a good character ought to weigh very strongly in behalf of a person accused." 50 It has been held, however, that, although an instruction "that the good character of the defendant can only be taken into consideration when the jury have a reasonable doubt" of his guilt, is improper, a conviction will not be reversed therefor when defendant was clearly guilty according to his own testimony. 51 § 390. Instructing that evidence of good character cannot avail against clear proof of guilt. If the proof of guilt is clear and convincing, proof of previous good character cannot be looked to as a ground of acquittal, and the jury may be so instructed. 52 Thus, it has been held proper to instruct that, if the evidence is convincing beyond a reasonable doubt, it is the duty of the jury to convict, notwithstanding good reputation; 53 "If the jury is satisfied of the prisoner's guilt from all the other facts and circumstances detailed in evidence, his good character cannot be looked to as a ground of ac- quittal;" 54 "if you should believe the defendant guilty, you must so find, notwithstanding his good character;" 55 ' ' evidence of good character is, in law, to be considered by the jury, in all doubtful cases, of great weight. Yet, if the 50 — State v. Holmes, 65 Minn. 230. . Missouri. State v. Vansant, 80 51 — State v. Slingerland, 19 Nev. Mo. 70; State v. McMurphy, 52 Mo. 135, 7 Pac. 280. 251. 52 — Arkansas. Edmonds v. State, New York. People v. Sweeney, 34 Ark. 720. 133 N. Y. 609; People v. Hammill, 2 California. People v. Mitchell, Parker, Cr. R. 223. 129 Cal. 584, 62 Pac. 187. Oregon. State v. Porter, 32 Ore. Georgia. Jackson v. State, 76 Ga. 135, 49 Pac. 964. 562. Compare State v. Lindley, 51 Iowa Indiana. McQueen v. State, 82 344. Ind. 74. ' 53— People v. Mead, 50 Mich. 233. Kansas. State v. Douglass, 24 54 — State v. McMurphy, 52 Mo. Pac. 1118. 251. Mississippi. Wesley v. State, 37 55 — People v. Samsels, 66 Cal. 99, Miss. 327, 75 Am. Dec. 62. 4 Pac. 1061. 858 Instructions to Jubies. '[§ 390 proof of guilt is direct and clear, it is entitled to little con- sideration;" 58 "if, from the whole testimony, they believe defendant is guilty, then his previous good character neither justifies, mitigates, nor excuses the offense;" 57 "if you shall conclude from all the evidence that the defendant is guilty, you should not acquit him because you may believe that he has heretofore been a person of good repute;" 58 "evidence as to good character can have little practical effect against direct and satisfactory evidence as to guilt, and it cannot turn the scale against conclusive evidence. ' ' 59 Previous good character is of great impor- tance, but evidence thereof is not to overcome the conclu- sion which properly follows if the jury are satisfied beyond a reasonable doubt that the defendant is guilty. 60 "Proof of the good character of the party charged with crime, if there is doubt of his guilt upon the evidence, may afford good ground for a presumption of innocence, but will not be available to overcome or set aside satisfactory proof of criminality." 61 "The good character of a per- son accused of a crime, when proven, is of itself a fact in the case; it is a circumstance tending in a greater or less degree to establish his innocence ; it must be considered in connection with all the other facts and circumstances of the case. But if, after full consideration of all the evi- dence adduced, the jury believe the defendant to be guilty of any degree of crime, they should so find, notwithstanding proof of good character." 62 It has also been. held proper to instruct that: "The de- fendant in this. case has offered evidence tending to show his character as a peaceable, law-abiding citizen. The de- fendant has a right to show his previous good character as a circumstance tending to show the improbability of his 56— Creed v. People, 81 111. 569. 60— Com. v. Eekerd, 174 Pa. St. 57— State v. Jones, 78 Mo. 282. 137. 58 — State v. Vansant, 80 Mo. 70. 61 — United States v. Smith, 2, 59 — State v. Spooner, 41 La. Ann. Bond 323, Fed. Cas. No. 16,322. 780. 62— People v. Smith, 59 Cal. 601. § 390] Credibility and Pbobative Fobce of Evidence. 859 guilt, or that lie would commit such a crime. If, however, you believe from the evidence, beyond a reasonable doubt, that the defendant committed the crime in question, as charged in the indictment, then it would be your duty to find the defendant guilty, even though the evidence satis- lied your minds that defendant, previous to the commission of the alleged crime, had sustained a good reputation as a peaceable and law-abiding citizen." The court need not add to such an instruction the words, "The court further instructs you that proof of good character may be sufficient of itself to create a reasonable doubt of defendant's guilt, although no such doubt would have existed but for such good character. ' ' 63 s So, an instruction that: "The defendant has introduced evidence before you tending to show his good character for peace and quietness. If, in the present case, the good char- acter of the defendant for these qualities is proven to your satisfaction, then such fact is to be kept in view by you in all your deliberations, and it is to be considered by you in connection with the other facts in the case; and if, after a consideration of all the evidence in the case, including that bearing upon the good character of the defendant, the jury entertain a reasonable doubt as to defendant's guilt, then I charge you it is your duty to acquit him. But if the evi- dence convinces you, beyond a reasonable doubt, of defend- ant's guilt, you must so find, notwithstanding his good character," — is not open to the interpretation that the jury must be convinced beyond a reasonable doubt of defendant's guilt from the evidence taken in the case, excluding from their minds the evidence offered in reference to defendant 's good character. 64 It has been held not erroneous to charge that evidence of the good character of the defendant can have but little or no effect where the facts constituting the crime are clearly 63— State v. Porter, 32 Ore. 135, 64— People v. Mitchell, 129 Cal. 49 Pac. 964. 584, 62 Pae. 187. 860 Instructions to Juries. [§ 390 proved, if the jury are also told that this is not such a case, but that this evidence is to be considered with all the other evidence in determining whether there is a reason- able doubt of his guilt. 65 But in one case it was held error to refuse an instruction that the jury might, in the exercise, of a sound discretion, give the defendant the benefit of previous good character, no matter how conclusive other testimony might appear to be, and to leave it to the jury to say what weight good character should have in deter- mining defendant's guilt or innocence. 86 § 391. Instructing that evidence of good character may create reasonable doubt. As a general rule, it is proper to instruct that evidence of good character may of itself be sufficient to create a reasonable doubt, 67 and the defendant is entitled to have the jury distinctly instructed that good character may of itself create a doubt, where otherwise none would exist. 68 Accordingly, it is error to charge that it is only in connec- tion with other evidence that such evidence may, by the creation of a reasonable doubt, produce an acquittal. 69 And an instruction which hypothesizes that evidence of good character, taken in connection with all the evidence in the case, is sufficient to generate a doubt, is properly refused, as good character, if proven, may at most suffice in connec- tion with all the other evidence, to generate such doubt. 70 In one case, the reviewing court said that it was not suffi- cient for the trial judge to instruct the jurors that "the good character of the defendant is a circumstance * * * for their consideration," because this was only equivalent 65 — State v. Leppere, 66 Wis. 355 66— People v. Elliott, 163 N. Y 11, rev'g 43 App. Div. (N. Y.) 621 67 — People v. Doggett, 62 Cal. 27 People v. Bell, 49 Cal. 489; Lowen berg v. People, 5 Parker, Cr. E. (N. Y.) 414; Stephens v. People, Parker, Cr. E. (N. Y.) 396. 68— People v. Elliott, 163 N. Y. 11, rev'g 43 App. Div. 621. 69— Taylor v. State, 13 Ga. App. 715. 70 — Abrams v. State, 155 Ala. 105. § 391] Credibility and Probative Force of Evidence. 861 to the admission of the testimony as to character. 71 It has been held, however, that a refusal to give siich an instruc- tion is not prejudicial, where the court instructs that ' ' evi- dence of the defendant's good character must be consid- ered in connection with all the evidence in the case, and if, then, the jury have a reasonable doubt of the defendant's guilt, they must acquit. ' ' 72 There is some conflict of authority as to whether it is proper to instruct that good character, if established, is sufficient to raise a doubt as to the prisoner's guilt. In one state, where an instruction on the weight of the evidence is permissible, a charge to this effect has been approved. 73 In another jurisdiction, where it is not permissible to charge .on the weight of the evidence, it has been held proper to refuse such an instruction, the court saying that, "while such evidence is admissible for the purpose of generating a reasonable doubt of guilt, its sufficiency is a question for the decision of the jury. ' ' 74 So, a requested instruction that the jury may consider defendant's character for the purpose of accepting or rejecting his statement, and weigh- ing it as against, and as corroborative of, sworn evidence, and that, whenever the case is doubtful, character should control the jury in favor of the innocence of the prisoner, was held properly refused as argumentative, and as stat- ing the law too favorably for the accused. 75 The refusal of a requested instruction to the effect that, if evidence of defendant 's good character raises a doubt of his guilt, the jury might acquit him, though the other evidence shows 71— People v. Bell, 49 Cal. 485. 72— People v. Bowman, 81 Cal. 566, In, People v. Elliott, 163 N. Y. 11, 22 Pac. 917. where the court merely charged that 73 — Com. v. Carey, 2 Brewst. (Pa.) good character should weigh when a 406. man is charged with crime, and left 74 — Barnett v. State, 83 Ala. 40; it to the jury to say what weight Booker v. State, 76 Ala. 22. should be given it, it was held error 75 — Johnson v. State, 95 6a. 499. to refuse defendant's request to charge distinctly that good charac- ter might create a reasonable doubt. 862 Instructions to Juries. [ § 391 him guilty beyond a reasonable doubt, was also held proper. The two clauses of this instruction are contradictory. 76 In one state, the rule, is well settled that "evidence of the good character of the accused should go to the jury as any other fact, and its influence in the determination of the case should be left to the jury, without any intimation from the court of its value. ' ' 7T § 392. Instructions as to effect of evidence of good char- acter in cases of great and atrocious criminality. While the strength of the presumption of innocence aris- ing from evidence of good character will vary according to the attending circumstances of each case, there is no reason why the presumption should not be as strong in the case of an accusation of a great offense. 78 Evidence of good character is not only of value in prosecutions for minor offenses, but is entitled to be considered when the crime charged is atrocious. 79 And, in accordance with this view, it has been held erroneous to charge that, "where it is a question of great and atrocious criminality, * * * 76— State v. Bryant, 134 Mo. 246. 9; Caneemi v. People, 16 N. Y. 501; ' 77 — Powers v. State, 74 Miss. 777 Hammond v. State, 74 Miss. 214 Coleman v. State, 59 Miss. 490 Harrington v. State, 19 Ohio St. 264. 79 — Eemsen v. People, 43 N. Y. 9. Contra; In the Webster Case, Wesley v. State, 37 Miss. 327. Chief Justice Shaw charged the jury See also, Briggs v. Com., 82 Va. as folldws: "Where it is a question 554, where it was held proper to re- of great and atrocious criminality; fuse a charge that, "if accused be the commission of the act is so un- proved of good character as a man usual, so out of the ordinary course of peace, the law says that such of ^ings, and beyond common ex- good character may be sufficient to P erien( =e; it is so manifest that the create a reasonable doubt of his offenSe > " P^Petrated, must have guilt, although no such doubt would been lllflueilced . ^ ™*™ »«t fre- * . , , , ,,, , , , quently operating upon the human have existed but for such good char- . , ... ., , „ , B mind,— that evidence of , character, acter;" and to instruct that the „„-, . „ __„*„i.„vi i -• . ' and or a man's habitual conduct un- character of the accused, good or der common eirculnstanoeS; must be bad, when proved, may always be considered far inferior to what it is received and weighed in favor of or i n the instance of accusations of a against him, as the case may be. lower grade." Com. v. Webster 5 78— Eemsen v. People, 43 N. Y. Cush. (Mass.) 324. § 393] Cbedibility and Probative Force of Evidence. 863 evidence of character, and of a man's habitual conduct under common circumstances, must be considered far infe- rior to what it is in the instance of accusations of a lower grade." so § 393. Identity of defendant. As a general rule it would seem that the giving of an instruction as to weighing the evidence as to the identity of the person who has committed a crime, when that fact is in issue, is unnecessary, as that question is sufficiently covered by the usual instructions as to reasonable doubt, the presumption of innocence, and the like. But such in- structions are frequently given. Where the presumption of identity of person from identity of name is disputed, and the defendant offers no evidence to disprove such pre- sumption, the jury may be instructed that ' ' identity of per- son, is presumed from identity of name," and the failure to instruct that this presumption is only prima facie is not prejudicial error. 81 In a case where witnesses positively identify a defendant as one of the persons participating in the crime charged, the defendant is not entitled to an in- struction that such testimony is but a mere matter of opinion. An instruction that the jury are to fully consider all the circumstances and conditions under which these witnesses claimed to have seen the defendant at the time of the crime, as well as the circumstances of his subsequent iden- tification, claimed to have been made by them, and that they are not bound by the fact that these witnesses testis fied that the defendant was one of these criminals, and it is left to the jury to say what weight it would give to this testimony thus considered, and, taken in connection with the evidence introduced by the defendant in support of an 80— Cancemi v. People, 16 N. T. 81— People v. Riley, 75 Cal>98, 16 501. Pac. 544. 864 Instructions to Juries. [§ 393 alibi, is as favorable to a defendant as he is entitled to 82 An instruction that the jury should feel "an abiding con- fidence and full faith" that certain witnesses were not mis- taken in the fact of identification by personal recognition, is erroneous and is properly refused. 83 So, an instruction that "the law books are full of cases of mistaken identity," is bad, as being argumentative, 84 and it is error to instruct that the jury are not legally bound to acquit the defendant, because they may not be entirely satisfied that the defend- ant, and no other person, committed the alleged offense. 85 It is proper to refuse an instruction that "the identity of the accused must be established to an absolute moral cer- tainty, and every fact and circumstance must be established to the same degree of certainty as the main fact which these independent circumstances, taken together, tend to establish. If this certainty is not proven then the jury must acquit the defendant. ' ' 86 In a prosecution for an assault, a request for an instruc- tion that the defendant is entitled to an acquittal if there is any probability that the prosecuting witness is mistaken as to his identity, is properly refused, though a reasonable doubt as to identity entitles ah accused to an acquittal. 87 82— State v. Powers, 72 Vt. 168. 86— People v. Nelson, 85 Cal. 421, 83— Hughes v. State, 75 Ala. 31. 24 Pac. 1006. 84— Hughes v. State, 75 Ala. 31. 87— Booker v. State, 76 Ala. 22. 85— People v. Carrillo, 70 Cal. 643, 11 Pac. 840; People v. Brown, 56 Cal. 405. CHAPTEE .XXXI. Instructions as to Circumstantial Evidence. § 394. Necessity and propriety of instructions as to circumstantial evidence. § 395. Sufficiency of instructions as to circumstantial evidence. § 396. Instructions disparaging circumstantial evidence. § 397. Instructing that circumstantial evidence alone may warrant con- viction. § 398. Instructing that proof must be inconsistent with any other reasona- ble conclusion than that of guilt. § 399. Instructing that circumstantial evidence must exclude to a moral cer- tainty every, hypothesis but that of guilt. §400. Instructing that circumstantial evidence must exclude every "pos- sible" hypothesis except that of guilt. § 401. Instructing that circumstances must be absolutely incompatible with innocence. § 402. Instructing that circumstantial evidence should produce nearly the same degree of certainty as direct evidence. § 403. Instructing that circumstantial evidence must be equal to testimony of one eyewitness. § 404. Instructing that each link in the chain of circumstantial evidence must be proved beyond reasonable doubt. § 405. Same — Contrary view. § 406. Instructing that jury need not be satisfied, beyond a reasonable doubt, of each link. §394. Necessity and propriety of instructions as to cir- cumstantial evidence. The omission or refusal to give instructions on the law of circumstantial evidence, whether x requested or not, is error in jurisdictions where the statutes require the trial court to give to the jury all the law applicable to a case. 1 1 — Navarrow v. State (Tex. App.) State, 26 Tex. App. 126; Boyd v. 17 S. W. 545; Smith v. State; State, 24 Tex. App. 570, 5 Am. St. 28 Tex. App. 309; Daniels v. State Eep. 908; Crowell v.- State, 24 Tex. (Tex. App.) 14 S. W. 395; Dea- App. 404; Struekman v. State, 7 ton v. State (Tex. App.) 13 S. Tex. App. 581; Hunt v. State, 7 W. 1009; Scott v. State (Tex. App.) Tex. App. 212; Boswell v. State, 59 12 S. W. 504; Crowley v. State, Tex. Cr. App. 161; Childers v. State, 26 Tex. App. 578; Willard v. 37 Tex. Cr. App. 392; Lopez v. State (865) Blashfleld Vol. 1—55 866 Instructions to Juries. [§394 And usually such error is ground for reversal ; 2 and in one state no objection or exception is necessary to save the error for review. 3 If a request for an instruction on circumstan- tial evidence is made, the court is bound to instruct on the subject, though the requested instruction is erroneous. 4 The omission to charge on the nature and conclusiveness of circumstantial evidence is not cured by the giving of an instruction on reasonable doubt. 5 But in one case it was held that, although the court failed to charge specially as to circumstantial evidence, this was not ground for new trial, when the court did very fully and liberally to de- fendant instruct as to reasonable doubt, and the amount and character of testimony necessary to a conviction. 6 And in another case it was held that an instruction that if the jury were satisfied beyond a reasonable doubt that a crime had been committed, and if, from all the circumstances proven connected with the commission of the alleged crime, the jury were satisfied of defendant's guilt beyond a rea- (Tex. Cr. App.) 40 S. W. 595; Mc- quired to charge on circumstantial Camant v. State (Tex. Cr. App.) 37 evidence. Womack v. State, — Tex. S. W. 437; Poston v. State (Tex. Cr. Cr. App. — , 170 S. W. 139. App.) 35 S. W. 656; Green v. State 2 — Kincaid v. State, 13 Ga. App. (Tex. Cr. App.) 34 S. W. 283; Po- 683; Navarrow v. State (Tex. App.) lanka v. State, 33 Tex. Cr. App. 634; 17 S. W. 545; Deaton v. State (Tex. Robertson v. State (Tex. Cr. App.) App.) 13 S. W. 1009; Crowley v. 26 S. W. 728; Martin v. State, 32 State, 26 Tex. App. 578; Willard v. Tex. Cr. App. 441; Scott v. State State, 26 Tex. App. 126; Hanks v. (Tex. Cr. App.) 23 S. W. 685; Alder- State (Tex. Cr. App.) 56 S. W. 922; man v. State (Tex. Cr. App.) 23 S. Poston v. State (Tex. Cr. App.) 35 W. 685; Montgomery v. State (Tex. S. W. 656; Polanka v. State, 33 Tex. Cr. App.) 20 S. W. 926; People v. Cr. App. 634; Scott v. State (Tex. Scott, 10 Utah 217, 37 Pac. 335; Cr. App.) 23 S. W. 685; Montgomery United States Exp. Co. v. Jenkins, 64 v. State (Tex. Cf . App.) 20 S. W. Wis. 542. 926. Where proof of guilt depends 3 — Polanka v. State, 33 Tex. Cr. alone on circumstantial evidence, App. 634; Montgomery v. State the court should submit that issue in (Tex. Cr. App.) 20 S. W. 926. his charge to the jury. Law v. 4 — People v. Scott, 10 Utah 217, State, 71 Tex. Cr. App. 179. 37 Pac. 335. It is only when the. evidence is 5 — Hamilton v. State, 96 Ga. 301; purely and wholly circumstantial Struckman v. State, 7 Tex. App. 581. that the court is authorized or re- 6 — Barrow v. State, 80 Ga. 191. § 394] Instructions as to Circumstantial, Evidence. 867 sonable doubt, they should return a verdict accordingly, sufficiently expressed the rule that circumstantial evidence must exclude every reasonable hypothesis except that of guilt, in order to justify a conviction. 7 In a prosecution for rape, evidence of an attempt to spirit the girl away, the attempt of the defendant to commit suicide, the birth of child within 282 days after the act of intercourse, and the fact that the prosecutrix had never been seen in the com- pany of other men and boys, justified an instruction as to circumstantial evidence. 8 In jurisdictions where the court is not bound to give all the law applicable to a case of its own motion, the refusal of a request for an instruction on circumstantial evidence is erroneous, where this is the only evidence in the case on which to base a conviction. 9 But where the court, at the instance of the state, instructs the jury as to the right to convict upon circumstantial evidence, and thereafter gives all the instructions asked by the defendant in respect to such evidence, the latter has no cause of complaint that the first instructions failed to give any rules for weighing and determining the effect of circumstantial testimony, or to suggest the need of extra caution respecting such testi- mony. 10 Instructions on the weight and effect of circumstantial evidence are not required and should not be given, where proof of guilt is not dependent upon circumstantial evi- dence, but rests on direct and positive testimony. 11 In such 7 — Tatum v. State, 61 Neb. 229. refused an instruction on the sub- 8 — People v. Duncan, 261 111. 339. ject. 9 — Wantland v. State, 145 Ind. 10 — State v. Ingram, 16 Kan. 14. 38; Territory v. Lermo, 8 N. M. 566, 11 — Alabama. Cowart v. State, 11 46 Pac. 16. Compare State v. Roe, Ala. App. 102. 12 Vt. 93, where it was held that, Arkansas. Vaughan v. State, 57 as to circumstantial evidence, it Ark. 1. rests in the discretion of the trial California. People v. Holden, 13 judge to what extent he -will go in Cal. App. 354, 109 Pac. 495. laying down to the jury the ap- Georgia. Moore v. State, 97 Ga. proved rules for weighing such evi- 759. dence. In this case the trial court 868 Instructions to Juries. t§ 394 case an instruction as to circumstantial evidence is abstract, and is properly' refused. 12 It is not error to omit to give the jury a charge' explaining the rules governing in cases of circumstantial evidence, where the evidence relied upon for a conviction is not wholly circumstantial. 13 If there is direct -evidence to prove that defendant committed the crime charged, the court may properly refuse to give in- structions based on the hypothesis that the case is purely one of circumstantial evidence, and stating the rules as to the weight and conclusiveness of such evidence. 14 But, though the court may not be compelled to charge on cir- cumstantial evidence, where there is direct evidence of guilt, it is proper to do so where the evidence in the case was largely circumstantial. 15 So, where the guilt of an Mississippi. Purvis v. State, 71 Miss. 706. Missouri. State v. Fairlamb, 121 Mo. 137. South Dakota. State v. Harbour, .27 S. D. 42. Texas. Colter v. State, 37 Tex. 284; Leeper v. State, 29 Tex. App. 154; Clore v. State, 26 Tex. App. 624; Granado v. State, 37 Tex. Cr. App. 426; Rodgers v. State, 36 Tex. Cr. App. 563; Campbell v. State, 35 Tex. Cr. App. 160; Evans v. State (Tex. Cr. App.) 31 S. W. 648; Ellis v. State, 33 Tex. Cr. App. 86; Blan- ton v. State (Tex. Cr. App.) 26 S. W. 624; White v. State,' 32 Tex. Cr. App. 625; Conners v. State, 31 Tex. Cr. App. 453. 12 — Cowart v. State, 11 Ala. App. 102. 13 — Rains v. State, 88 Ala. 91; Coleman v. State, 87 Ala. 14; Weathersby v. State, 29 Tex. App. 278; Jones v. State, 23 Tex. App. 501; Stone v. State, 22 Tex. App. 185; Dunn v. State, 43 Tex. Cr. App. 25. See also, Beason v. State (Tex. Cr. App.) 63 S. W. 633. Contra, see State v. Andrews, 62 Kan. 207, 61 Pae. 808, wherein it was held error to refuse an instruc- tion on circumstantial evidence, where the evidence of defendant's guilt was partly circumstantial. Instruction is properly refused where the evidence is not wholly circumstantial. Jones v. State, 59 Tex. Cr. App. 559. An instruction as to circumstan- tial evidence is erroneous when there is very little, if any, of such evi- dence. - State v. Brandell, 26 S. D. 642. 14— Wilson v. State, 128 Ala. 17; Rains v. State, 88 Ala. 91; Cotton v. State, 87 Ala. 75; People" v. Lem Deo, 132 Cal. 199, 64 Pac. 265; State v. Donnelly, 130 Mo. 642; Weathers- by v. State, 29 Tex. App. 278; Thomas v. State, 43 Tex. Cr. App. 20, 96 Am. St. Rep. 834; Upchurch v. State (Tex. Cr. App.) 39 S. W. 371. 15 — Rountree v. State (Tex. Cr. App.) 58 S. W. 106. § 394] Instructions as to Circumstantial Evidence. 869 accused depends upon the interpretation and probative force of circumstances shown by the evidence, it is error to refuse an instruction as to circumstantial evidence, though much direct evidence has been introduced.^ 6 It is not necessary or proper for the court to charge on circumstantial evidence where the defendant has confessed to the crime. 17 Proof of confessions by defendant obviates the necessity of stating the law applicable to circumstan- tial evidence, 18 even though such proof is made by the tes- timony of an accomplice, 19 unless the evidence shows him utterly unworthy of belief, and his testimony is the only positive evidence given. 20 When there is testimony to show that defendant confessed his guilt, it is, of course, proper to refuse an instruction that the evidence in the case is purely circumstantial. 21 On a prosecution for murder, where a witness identified ■ the defendant as the person who fired the fatal shot, a charge on circumstantial evidence was properly refused. 22 So, instructions as to the weight of circumstantial evidence are properly refused when defendant's guilt is testified to positively by eyewitnesses, 23 and it makes no difference that 16— State v. Miller, 90 Kan. 230, 18— Perry v. State, 110 Ga. 234; Ann. Cas. 1915 B 81 8n, 133 Pac. 878. Langdon v. People, 133 111. 382; 17 — Anderson v. State, 71 Tex. Cr. State v. Robinson, 117 Mo. 649; Carr App. 27. ' v. State, 24 Tex. App. 562, 5 Am. St. No instruction on circumstantial Rep. 905; Ricks v. State, 41 Tex. Cr. evidence is necessary when defend- App. 676; White v. State, 32 Tex. ant confesses his guilt. Jackson v. Cr. App: 625. State (Tex. Cr. App.) 62 S. W. 914; 19— Vaughan y. State, 57 Ark. 1; Albritton v. State (Tex. Cr. App.) Wampler v. State, 28 Tex. App. 26 S. W. 398. Where the record in 352. a prosecution for murder shows that 20 — State v. Donnelly, 130 Mo. 642. defendant made a confession admit- 21 — Green v. State, 97 Ala. 59. ting his presence and participation 22 — Herrera v. State, — Tex. Cr. in the death of deceased, but claimed App. — , 170 S. W. 719. that he participated because coerced 23 — Purvis v. State, 71 Miss. 706; to do so, the case is taken out of the Campbell v. State (Tex. Cr. App.) realm of circumstantial evidence, 38 S. W. 171; Evans v. State (Tex. and it is consequently not error for Cr. App.) 31 S. W. 648; Adams v. the court to fail to charge thereon. State, 34 Tex. Cr. App. 470; Thomp- 870 Instructions to Juries. [§ 394 such witness is the prosecuting witness in the case, 24 or an accomplice in the commission of the crime charged. 25 "Where the only issue was whether the stolen property be- longed to the prosecutor, and he testified that it did, a failure to charge on circumstantial evidence is not error. 26 A charge on circumstantial evidence is inapplicable and should not be given on the question of venue. 27 § 395. Sufficiency of instructions as to circumstantial evi- , dence. It is an unnecessary and dangerous thing to give lengthy and prolix instructions attempting to explain the law ap- plicable to circumstantial evidence. 28 An instruction should not be given which leads to the inference that the circum- stances should be segregated in passing upon the weight to be attached to each. 29 The weight of circumstantial evidence is not for the court, and the statement, "then the . requirements of the law as to the sufficiency of circumstan- tial evidence will be satisfied," is erroneous as invading the province of the jury. 30 It has been held that an instruc- tion that "there. is nothing in the nature of circumstantial evidence that renders it less reliable than other classes of evidence" contains a correct statement of the law. and is free from legal exceptions. 31 The court may direct the attention of the jury to the circumstances relied upon by the state, if at the same time it is left to the jury to deter- son v. State, 33 Tex. Cr. App. 217; 26— Gann v. State (Tex. O. App.) Jonea v. State, 31 Tex. Cr. App. 177; 59 S. W. 896. Gibbs v. State (Tex. Cr. App.) 20 27— Eeynolds v. State, 71 Tex. Cr. S. W. 919. App. 454. 24— Evans v. State (Tex. Cr. 28— Harris v. State, 10 Okla Cr. App.) 31 S. W. 648. See also, Gann 417, 139 Pac. 846, 137 Pac. 365. v. State (Tex. Cr. App.) 59 S. W. 29— State v. Fisk, 170 Ind. 166. 896; Granado v. State, 37 Tex. Cr. 30— Harris v. State, 10 Okla. Cr. App. 426. 417, 139 Pae. 846, 137 Pac. 365. 25— Thompson v. State, 33 Tex. Cr. 31— People v. Urquidas, 96 Cal. App. 217. See also, Thomas v. State, 239, 31 Pac. 52; People v. Morrow, 43 Tex. Cr. App. 20, 96 Am. St. Rep. 60 Cal. 142. 834. § 395] Instructions as to Circumstantial Evidence. 871- mine whether or not the circumstances are shown to exist. 32 An instruction which, in effect, tells the jury that cir- cumstantial evidence is to be regarded when it is strong and satisfactory, and is to be disregarded when it is not, is erroneous. On a" trial for homicide, an instruction that "circumstantial evidence was to be regarded by the jury in all cases, and that, when it was strong and satisfactory, the jury should so consider it, neither enlarging nor belit- tling its force, and that they should make those reasonable inferences from circumstances proven which the guarded judgment of a reasonable man should ordinarily make under like circumstances," is properly given. 33 An instruction on circumstantial evidence that, "if it is of such a character as to exclude every reasonable supposition or hypothesis, other than that of the defendant's guilt, then and in that event it should be given the same weight by you as direct evidence, ' ' was held not to be an unconditional direction to the jury to give the same weight to circumstantial evidence as to direct evidence. 34 So, in several cases it was held that an instruction that, "if circumstantial evidence is of such a character as to exclude every reasonable hypothesis other than that of defendant's guilt, it is entitled to the same weight as direct evidence," was not erroneous, as meaning not tbat circumstantial evidence is entitled to the same weight as direct evidence, but that, when a defend- ant's guilt is established by circumstantial, it is the same as if it were established by direct, evidence. 35 While it is error to instruct that ' ' circumstantial evidence is legal and competent evidence, ' ' as the jury have no concern with the legality and competency of the evidence, such error will not warrant reversal unless it appears that the party com- plaining has been prejudiced. 38 32 — Koerner v. State, 98 Ind. 7; See also, to same effect, People v. McKay v. Seattle Elec. Co., 76 Wash. Neufeld, 165 N. Y. 43; Longley v. 257, 136 Pac. 134. Com., 99 Va. 807. 33— Smith v. State, 61 Neb. 296. 36— Williams v. State, 95 Miss. 34— Davis v. State, 51 Neb. 301. 671. 35— Reynolds v. State, 147 Ind. 3. 872 Instructions to Juries. [§ 395 When full instructions are given that the jury must be guided entirely by the evidence and must be convinced by it beyond a reasonable doubt, the instruction goes to both circumstantial and direct evidence, and it must be assumed that the jury will so apply it. 37 So, the following instruc- tion has been> approved : "For the practical purposes of the trial, there is no difference between what is called cir- cumstantial and what is called direct evidence. ' ' That the only question is, does the evidence show defendant's guilt beyond a reasonable doubt? 3S An instruction, given at defendant's request: "That, to warrant a conviction on circumstantial evidence, each fact necessary to the con- clusion sought to be established must be proven by compe- tent evidence beyond a reasonable doubt, and all the facts necessary to such conclusion must be consistent with each other, and with the main fact sought to be proved ; and the circumstances, taken together, must be of a conclusive na- ture, leading, on the whole, to a satisfactory conclusion, and producing, in effect, a reasonable and moral certainty that the accused, and no other person, committed the offense charged. The mere union of a limited number of independent circumstances, each of an imperfect and incon- clusive character, will not justify a convictidn. They must be such as to generate and justify full belief according to the standard rule of certainty. It is not sufficient that they coincide with and render probable the guilt of the accused, but they must exclude every other reasonable hypothesis. No other conclusion but that of the guilt of the accused must fairly and reasonably grow out of the evidence, but the facts must be absolutely incompatible with innocence, and incapable of explanation upon any other reasonable hypothesis than that of guilt," — is a sufficient charge on circumstantial evidence. 39 37 — People v. Holden, 13 Cal. App. 39— Villereal v. State (Tex. Cr. 354, 109 Pac. 495. App.) 61 S. W. 715. 38— State v. Rome, 64 Conn. 329. § 395] Instbuctions as to Cibcumstantial Evidence. 873 Where the evidence is merely circumstantial in its char- acter, an instruction that the t jury must find the defendant guilty if they believe the evidence is erroneous as being an invasion of the province of the jury. 40 The jury may prop- erly be instructed, where the evidence is all circumstantial, that defendant's innocence must be presumed until his guilt is established by convincing evidence beyond a reasonable doubt. 41 So, the court may instruct that each necessary fact must be proved beyond a reasonable doubt; that all the facts must be conclusive in their nature, leading to the conclusion, with moral certainty, that defendant, and no other person, committed the crime, and that if they, from the evidence or the want of evidence, could account for the facts and circumstances in evidence upon any theory or hypothesis consistent with the innocence of accused, then tfo acquit. 42 So it has been held erroneous to refuse an in- struction: "The jury must find the defendant not guilty if the conduct of said defendant, upon a reasonable hypothe- sis, is consistent with innocence. ' ' 43 An instruction as to circumstantial evidence which leaves out the element of reasonable doubt is erroneous. 44 An in- struction that circumstantial evidence must produce, "in effect, a reasonable and moral certainty" of defendant's guilt, has been held not erroneous for using this phrase instead of the phrase, ' ' the effect of a reasonable and moral certainty." 45 So, an instruction that "circumstantial evi- dence * * * consists in this: that, where there is no satisfactory evidence of the direct fact, certain facts which are assumed to have stood around or been attendant on the direct fact are proved, • from the existence of which the direct fact may be inferred," has been held not erroneous, since the word "assumed" is clearly used in the sense of 40 — Sima v. State, 43 Ala. 33; 43 — Howard v. State, 108 Ala. 571. State v. Dixon, 104 N. C. 704. 44 — People v. Moore, 161 111. App. 41 — Gilmore v. State, 99 Ala. 154. 56. 42 — Crow v. State, 33 Tex. Cr. 45 — Loggins v. State, 32 Tex. Cr» App. 264, App. 364. 874 Instructions to Jubies. [§ 395 ' ' claimed. " ie It has been held that an instruction that, in cases of circumstantial evidence, the time, place, manner, opportunity, motive and conduct must concur in pointing to the prisoner as the guilty agent, is not improperly modi- fied by charging that all these circumstances, or such of them as may be proved with other facts, if any, must so concur. 47 Where a full and correct charge on the law of circumstantial evidence has been given, the giving of a further instruction that, ' ' if the circumstances are such as to carry conviction to your minds, beyond a reasonable doubt, that the defendant is guilty, and are such as the de- fendant might explain away, and he fails so to do, then you would be authorized to find the defendant guilty," does not warrant a new trial. 48 In charging on circumstantial evidence, it was held not reversible error to tell the jury that those who declare it to be cruel and criminal to convict on circumstantial evidence are knaves or fools. 49 An inaccurate statement in a charge as to the distinction between direct and circumstantial evi- dence is not ground for reversal, where the court correctly instructs the jury on the legal definition of both classes of evidence, and also instructs that defendant is to have the benefit of any reasonable doubt. 60 Where the court is pro- hibited from charging the jury with respect to matters of fact, an instruction: "Though in human judicature, im- perfect as it must necessarily be, it sometimes happens that error has been committed from a reliance on circumstantial evidence, yet this species of evidence, in the opinion of all those who are most conversant, with the administration of justice, and most skilled in judicial proceedings, is not only proper and necessary, but it is sometimes even more satis- factory than the testimony of a single individual, who swears that he has seen a fact committed. Even persons 46-^Jenkins v. State, 62 Wis. 49. 49 — Hickory v. United States, 151 47— Sutton v. Com., 85 Va. 128. U. S. 303, 38 L. Ed. 170. 48— Wells v. State, 99 Ga. 206. 50— Eoberts v. State, 83 Ga. 369. § 396] Insteuctions as to Cikcumstantial Evidence. 875 professing to have been eye-witnesses of that to which they may testify may speak falsely," — is reversible error, as a charge on the relative value of direct and circumstantial evidence. 51 "Where, in a murder case, the trial court, in charging the jury upon the competency and meaning of cir- cumstantial evidence, remarks that ' ' many, probably a ma- jority of, convictions of crime are had upon circumstantial evidence," such remark will not constitute reversible error if the question of defendant's guilt is submitted to the jury with full and fair instructions as to their duties and exclusive rights in its determination. 52 Where charges upon circumstantial evidence have once been approved by the court of last resort, they should not thereafter be tam- pered with by the trial court. 33 An instruction in a criminal prosecution, "to the effect that, in a case of circumstantial evidence, where- the crimi- native circumstances are either denied by the defendants or are explained in such a way as to render their guilt doubtful, it is the duty of the jury to acquit the accused," is erroneous in requiring an acquittal wherever the accused denies such circumstances, without reference to the credi- bility of the denial, and ought to be refused. 54 § 396. Instructions disparaging circumstantial evidence. Circumstantial evidence, like direct or positive evidence, should be left to the consideration and determination of the jury without caution or suggestion on the part of the court as to its value or the necessity of scrutinizing it closely. 55 The court may properly refuse instructions, the tendency of which is to disparage the force and effect of circumstan- tial evidence. It has therefore been held proper to refuse the following instruction : ' ' Circumstantial evidence ought to be received with great caution, especially where an anx- 51— People v. O'Brien, 130 dal. 1, 53— Mclver v. State (Tex. Cr. 62 Pac. 297. App.) 60 S. W. 50. 52 — Funk v. United States, 16 54 — Long v. State, 42 Pla. 509. App. Cas. (D. C.) 478. 55— Minniard v. Com., 158 Ky. 210. 876 Instructions to Jueies. [§ 396 iety is naturally felt for the detection of great crimes;" and, "The jury, upon circumstantial evidence, and where such evidence is less conclusive than the positive and direct evidence of one witness, who testifies to the fact, must ac- quit the defendant. ' ' 56 An instruction that defendant can- not be convicted upon circumstantial evidence alone in a case where the state might have produced eyewitnesses was properly refused, where the eyewitnesses were unfriendly to the state. 57 Where the court refers to the necessity of resorting to circumstantial evidence as to the origin of a fire set by sparks from a locomotive, because sparks emitted in the daytime are, ordinarily speaking, invisible, no un- fairness or prejudice can result from such a statement of a matter of common knowledge. 58 § 397. Instructing that circumstantial evidence alone may warrant conviction. There is no impropriety in instructing the jury that ' ' they may, from circumstantial evidence alone, find the de- fendant guilty, when the facts established are inconsistent with any other theory than that of his guilt;" 59 or that, if the evidence of the defendant 's guilt is convincing, the jury are bound to convict her, though there were no eyewitnesses to the fact. 60 But it is erroneous to instruct that, "when direct evidence cannot be produced, minds will form their judgments on circumstances, and act on the probabilities of the case." The law requires the jury to be convinced of defendant's guilt, and does not permit the jury to act upon evidence insufficient to produce belief or conviction. 01 Error in charging that "a conviction may be had upon circumstantial evidence as well as upon direct evidence," 56 — Brown v. State, 23 Tex. 195. see, State v. Hillman, 142 Mo. App. 57— McCandless v. State, 42 Tex. 510. Cr. App. 655. 60— Com. v. Harman, 4 Pa. St 58 — Trustees of Little Cedar Con- 269. gregationof Adams v. Chicago, M. 61— People v. O'Brien, 130 Cal. 1, & St. P. R. Co., 119 Minn. 181. 62 Pac. 297. 59— State v. Hill, 65 Mo. 87. And § 398] Instructions as to Circumstantial Evidence. 877 in that the statement is a charge on the weight of the evi- dence, will not warrant reversal when the remainder of the charge states that the circumstances must he of such a conclusive nature as to exclude every conclusion except the guilt of the defendant. 62 § 398. Instructing that proof must be inconsistent with any other reasonable conclusion than that of guilt. The jury must always be advised that before circum- stantial evidence is sufficient, it must exclude every other reasonable hypothesis than that of guilt, 63 and an instruc- tion upon the quantum- of circumstantial evidence should substantially advise the jury that the circumstances proved must be consistent with each other and with the hypothesis that the defendant is guilty, and inconsistent with the theory of his innocence and with every reasonable hypothe- sis, except that of guilt. 64 In a well-considered Indiana decision it is said: "The true test by which to determine the value of circumstantial evidence, in respect to its sufficiency to warrant a convic- tion in a criminal case, is not whether the proof establishes circumstances which are consistent, or which coincide with the hypothesis of the guilt of the accused, but whether the circumstances, satisfactorily established, are of so conclu- sive a character, and point so surely and unerringly to the guilt of the accused, as to exclude every reasonable hypothe- sis of his innocence. The force of circumstantial evidence being exclusive in its character, the mere coincidence of a given number of circumstances with the hypothesis of guilt, 62 — Roberts v. State, 60 Tex. Cr. stances proven must not only be con- App. 20. sistent with the guilt of the defend- 63 — Simmons v. State, — Miss. ant, but must also be inconsistent — , 64 So. 721; Smith v. State, 101 with his innocence, and incapable of Miss. 283; Irving v. State, 100 Miss. any other reasonable explanation ex- 208. cept upon the ground that the de- 64 — State v. Maggard, 250 Mo. fendant is guilty. Harris v. State, 335. 10 Okla. Cr. 417, 139 Pac. 846, 137 It is sufficient if the court in- Pac. 365. structs the jury that the circum- 878 Instructions to Jueies. [§ 398 or that they would account for, or concur with, or render probable the guilt of the accused, is not a reliable or ad- missible test, unless the circumstances are to such a degree of cogency and force as, in the order of natural causes and effect, to exclude, to a moral certainty, every other hypothe- sis except the single one of guilt. * * * The proof must not only coincide with the hypothesis of guilt, but it must be inconsistent with every other rational conclu- sion. ' ' 65 "Whether the court is or is not required to instruct on its own motion on all the law applicable to a case, the refusal to give an instruction to this effect, when requested, is erroneous, where circumstantial evidence alone is relied on. 66 In one jurisdiction where the court is required in all trials of felony to state in its charge all the law applicable to the case, the court is bound to instruct the jury, in sub- stance, that, where circumstantial evidence is relied on for a conviction, the circumstances must be such as to exclude every other reasonable hypothesis except that of guilt, 67 and a failure to give this instruction is held to be reversible error. 68 There is some difference of opinion as to whether error in omitting or refusing an instruction to this effect may be cured by other instructions given. According to some decisions, an ordinary charge as to the law of reasonable doubt is not sufficient. 69 But in one case it was held not 65 — Cavender v. State, 126 Ind. also, State v. Andrews, 62 Kan. 207, 48. See also, Stout v. State, 90 Ind. 61 Pac. 808; Tatum v. State, 61 Neb. 1; Binns v. State, 66 Ind. 428; Sum- 229. ner v. State, 5 Blackf. (Ind.) 579. 67— Smith v. State, 7 Tex. App. "Where a criminal charge is to be 382; Hunt v. State, 7 Tex. App. 212; proved by circumstantial evidence, Coffman v. State, — Tex. Cr. App. the proof ought to be not only con- — , 165 S. W. 939; Smith v. State, 35 sistent with the prisoner's guilt, but Tex. Cr. App. 618; Harris v. State, inconsistent with every other ra- 34 Tex. Cr. App. 494; Jones v. State, tional conclusion." 1 Greenleaf, 34 Tex. Cr. App. 490. Ev. § 34. 68— Harris v. State, 34 Tex. Cr. 66— People v. Dick, 32 Cal. 216; App. 494. Wantland v. State, 145 Ind. 38; 69— Smith v. State, 7 Tex. App. Kollock v. State, 88 Wis. 663. See 382; Hunt v. State, 7 Tex. App. 212. § 398] Insteuctions as to Cibcumstantial Evidence. 879 error to refuse such an instruction, where the court suffi- ciently charged as to reasonable doubt, and also instructed that the burden of proof rested on the state. 70 And in an- other it was held not error to refuse an instruction "that, before the defendant could be convicted on circumstantial evidence, the circumstances should all concur to show that he committed the crime, and must all be inconsistent with any other rational conclusion, " where the court charged that: "You are instructed that circumstantial evidence is to be regarded by the jury in all cases, and is many times quite as conclusive in its convincing power as direct and positive evidence of eyewitnesses. When it is strong and satisfactory, the jury should so consider it, neither enlarg- ing nor belittling its force. It should have its just and fair weight with you; and if, when it is all taken as a whole, and fairly and candidly weighed, it convinces the guarded judgment, you should convict, and on such conviction you are not to fancy situations or circumstances which do not appear in the evidence, but you are to make* those just and reasonable inferences from circumstances proven which the guarded judgment of a reasonable man would ordi- narily make under like circumstances. * * * And if, in connection with the positive evidence before you,, you then have no reasonable doubt as to the defendant's guilt, you should convict him, but, if you then entertain such doubt, you should acquit him." 71 The following charges have been held proper on this head: That, to justify a conviction upon circumstantial evidence alone, ' ' the facts relied upon must be absolutely incompatible with the innocence of the accused, and inca- pable of explanation upon any other reasonable hypothesis than that of guilt." 72 "That the testimony must not only be consistent with the guilt of the defendants, but incon- 70 — Jones v. State, 61 Ark. 88. 71 — State v. Seymour, 94 Iowa 699. See also,' Tatum v. State, 61 Neb. 72 — Smith v. State, 7 Tex. App. 229. 382; Hunt v. State, 7 Tex. App. 212. 880 Instructions to Juries. [§398 sistent with, any other reasonable supposition." 73 That "the circumstances must be proved to your entire satisfac- tion, and, when the circumstances are established, they must point conclusively to the person charged, and must , be inconsistent with any other reasonable hypothesis. ' ' 74 That, "when a conviction is sought alone upon circumstan- tial testimony, the circumstances, taken together, must be such as to be incapable of explanation upon any other rational hypothesis but that of defendant's guilt." 75 That, to authorize conviction on circumstantial evidence, "each of the circumstances should not only be consistent with the defendant's guilt, but they must be inconsistent with any^ other rational conclusion or reasonable hypothesis, and such as to leave no reasonable doubt. ' ' 78 That the jury must "find the guilt of defendant beyond a reasonable doubt, and that the facts and circumstances tending to prove his guilt were not only consistent with any rational theory but that of the guilt of the defendant," and that "the proven facts must be inconsistent with any rational hypothesis consistent with his innocence." 7T That, to warrant a con- viction, "each fact necessary to establish guilt of the ac- cused must be proved by competent evidence beyond a rea- sonable doubt, and the facts and circumstances proved should not only be consistent with guilt of the accused, but inconsistent with any other reasonable hypothesis or con- clusion than that of guilt, and producing in your minds a 73 — State v. Davenport, 38 S. C. See also, State v. Kebler, 228 Mo. 348, in which the reviewing court 367. said that, while this was a slight de- Compare State v: Taylor, 111 parture from the words generally Mo. 538, where the following instruc- used, it was not error. tion, "Before you can convict on cir- 74 — State v. Milling, 35 S. C. 16. cumstantial evidence it must be of 75 — Irvin v. State, 7 Tex. App. such character and weight as to ex- 109; Crutchfield v. State, 7 Tex. App. elude all reasonable hypothesis of 65. defendant's innocence," was held 76-^-State v. Asbell, 57 Kan. 398, bad, as being too meager, and as v 46 Pac. 770. failing, too, to state the rule in such 77 — state v. David, 131 Mo. 380; a way as to make it a safe guide for State v. Hillman, 142 Mo. App. 510. the jury. § 398] Instructions as to Circumstantial Evidence. 881 reasonable and moral certainty that the accused committed the offense." 78 '. A charge that circumstantial evidence must produce, ' ' in effect, a reasonable and moral certainty that the accused, and no other person, committed the offense charged ; but in such case it is not sufficient that the circumstances coin- cided with, accounted for, and therefore rendered probable, the guilt of defendant. They must exclude to a moral cer- tainty every other reasonable hypothesis," — is not error. 79 An instruction which tells the jury that if circumstantial evidence convinces the guarded judgment they should con- vict, whereas if the evidence convinces the jury of defend- ant's innocence or raises a doubt of his guilt he should be acquitted, while possibly not misleading, should state that the jury should convict only if the circumstances were of such a character as to satisfy the minds of the jury of the guilt of the defendant beyond a reasonable doubt to the exclusion of every reasonable hypothesis other than the guilt of the defendant. 80 It will be noticed that in all these instructions the word "reasonable" or "rational" is used to qualify the word ' ' conclusion " or ' 'hypothesis. ' ' While there are a few decisions in which instructions omitting these words have been approved, 81 there are others in which a refusal of requested instructions has been upheld, because these words were omitted from the instructions. 82 Thus it was held proper to refuse an instruction that the jury should acquit unless the evidence was "such as to exclude every hypothesis but that of guilt." 83 An instruction that ' ' the humane provision of the law is that a conviction should not be had on circumstantial evi- 78 — Chitister v. State, 33 Tex. Cr. Coleman v. State, 59 Ala. 52; Mose App. 635. See also, Moseley v. State, v. State, 36 Ala. 212; Black v. State, 59 Tex. Cr. App. 90. 1 Tex. App. 368. 79 — Gonzales v. State (Tex. Cr. 82 — Crawford v. State, 112 Ala. 1; App.) 57 S. W. 667. People v. Strong, 30 Cal. 151. See 80 — State v. Allen, 34 Mont. 403, also, State v. Glass, 5 Ore. 81. 87 Pac. 177. 83 — Crawford v. State, 112 Ala. 1. 81— Riley v. State, 88 Ala. 188; Blashfield Vol. 1—56 , 882 Instructions to Jxjkies. [ § 398 dence, unless it excludes to a moral certainty every reason- able hypothesis but that of the defendant's guilt," has been held properly refused on account of the word "humane," which was thought to render the instruction argumen- tative. 84 So it has been held improper to instruct the jury to convict if the facts and circumstances cannot be reason- ably accounted for by any other reasonable hypothesis than that of defendant's guilt. In condemning this instruction, the court said: "If this were the law, the more mysteri- ous and obscure the crime, the more difficult it would be for one environed by suspicious but inconclusive circum- stances, and who was charged with its perpetration, to defend himself; for the verdict would not depend upon the strength of the evidence against him, but upon the fact that the jury could not satisfactorily account for the crime. ' ' 85 An instruction that ' ' the proof ought to be not only consistent with the prisoner's guilt but inconsistent with any other rational conclusion," is not erroneous in the use of the word "ought" in place of "must," the words being substantially of the same meaning. 86 § 399. Instructing that circumstantial evidence must ex- clude to a moral certainty every hypothesis but that of guilt. The jury may properly be instructed that before they can convict the defendant in cases depending on circum- stantial evidence, the evidence should be such as to exclude to a moral certainty every hypothesis save that of guilt. 87 The use of the word "absolute" before the word "cer- tainty" has been held to vitiate the instruction, and to make its refusal proper, on the ground that the word "absolute" 84 — Dennis v. State, 112 Ala. 64. pie v. Dick, 32 Cal. 214; Black v. 85 — Webb v. State, 73 Miss. 456. State, 1 Tex. App. 368; Moseleyv. 86 — State v. Blaine, 45 Mont. 482, State, 59 Tex. Cr. App. 90. See also, 124 Pac. 516. ch. XXVII, ante, "Instructions on 87 — Mose v. State, 36 Ala. 211; Seasonable Doubt."- People v. Anthony, 56 Cal. 397; Peo- § 400] Instructions as to Circumstantial Evidence. 883 suggests a degree of certainty greater than moral cer- tainty. 88 Ah instruction that "the hypothesis contended for by the prosecution must be established to an absolute moral certainty, to the entire exclusion of any other hypothesis being true, or the jury must find the defendant not guilty," was held properly refused. "Absolute moral certainty excludes not only reasonable doubt, but all doubt. It describes a fixed and uncompromising attitude of the mind, of which men are not capable in any of the situa- tions of life. It means such a degree of certainty as pre- cludes the possibility of error or mistake, and as pre- supposes the infallibility of witnesses and jurors. ' ' 89 An instruction as to circumstantial evidence containing the words "and must exclude to a reasonable and moral cer- tainty every other reasonable hypothesis than that of the guilt of defendant," is not erroneous because the words "beyond a reasonable doubt" are omitted after the word "exclude." 90 § 400. Instructing that circumstantial evidence must ex- clude every "possible" hypothesis except that of guilt. An instruction which requires acquittal "unless the evi- dence should be such as to exclude to a moral certainty every possible hypothesis but that of guilt," is erroneous; and properly refused. "A doubt which requires an ac- quittal must be 'actual and substantial, not mere possibil- ity or speculation. ' It is not a mere possible doubt, because everything relating to human affairs, and depending upon moral evidence, is open to some possible or imaginary doubt." Conviction resting on human testimony can never attain the certainty of mathematical demonstration, or repel all possible doubt of its correctness. A rule so exact- ing would paralyze the punitive arm of the law. In giving 88— People v. Davis, 64 Cal. 440, 90— Wheeler v. State, 61 Tex. Cr. 1 Pae. 889; State v. Glass, 5 Ore. 73. App. 527. 89— State v. Glass, 5 Ore. 82. 884 Instructions to Jueies. [§400 an instruction to the jury that the evidence, to authorize conviction, should be so strong as to lead the mind to the conclusion that the accused cannot be guiltless, the court should explain that it is moral and not mathematical certainty of proof which the law requires. 91 § 401. Instructing that circumstances, must be absolutely incompatible with innocence. The following instructions have been held erroneous and properly refused: "To justify the inference of legal guilt from circumstantial evidence, the existence of inculpatory facts must be absolutely and to a demonstration incom- patible with the innocence of the accused. ' ' 82 That, to warrant conviction on circumstantial evidence alone, the facts and circumstances must be such "as are absolutely inconsistent, upon any reasonable hypothesis, with the innocence of the accused. ' ' 93 That, to convict on circum- stantial evidence, the facts and circumstances "must be absolutely incompatible with the innocence of the ac- cused. ' ' 94 These instructions all require too high a degree of proof. In effect, they direct the jury that defendant cannot be convicted if there is a "possible" doubt of his guilt. "Absolute, metaphysical, and demonstrative cer- tainty is not essential to proof by circumstances. It is sufficient if they produce moral certainty, to the exclusion of every reasonable doubt. ' ' 95 § 402. Instructing that circumstantial evidence should produce nearly the same degree of certainty as direct evidence. According to some decisions, it is not improper to charge the jury that, "in order Jo convict, the circumstantial evi- 91 — Coleman v. State, 59 Ala. 52; 94 — Cornish v. Territory, 3 Wyo. Mose v. State, 36 Ala. 211. And see, 95, 3 Pac. 793. See People v. Neu- generally, ch. XXVII, ante. feld, 165 N. Y. 43, wherein such an 92 — People v. Bellamy, 109 Cal. instruction was given. 610, 42 Pac. 236. 95— Carlton.v. People, 150 111. 181, 93— Carlton v. People, 150 111. 181, 41 Am. St. Eep. 346; 1 Starkie, Ev. 41 Am. St. Eep. 346. § 79. § 403] Insteuctions as to Ciecumstantial Evidence. 885 dence should be such as to produce nearly the same degree of certainty as that which arises from direct testimony, and to exclude a rational probability of innocence. ' ' 96 Commenting on this instruction, the reviewing court said in one of these decisions: "It was but another mode of telling the jury that, although, as a general rule, circum- stantial evidence, in the nature of things, may not be so entirely satisfactory proof of a fact as the positive testi- mony of credible eyewitnesses, yet they must convict if they were satisfied of the guilt of the defendant, to the ex- clusion of all rational probabilities." 97 The reasoning is not very satisfactory. As guilt must be established beyond a reasonable doubt in all cases, it would seem that circum- stantial evidence should be such as to produce the same degree of certainty as that which arises from direct testi- mony, or, in other words, the probative force of the two kinds of evidence must be identical. §403. Instructing that circumstantial evidence must be equal to testimony of one eyewitness. In a number of decisions, it is held that the test of the sufficiency of circumstantial evidence to warrant a convic- tion in a criminal case is not whether it produces as full a conviction as would be produced by the positive testimony of an eyewitness, but whether it satisfies the mind of the jury of the defendant's guilt, to the exclusion of every reasonable doubt. 98 Such instructions are based on the statement of a learned text' writer, 99 but whether consid- ered correct as a rule of evidence or not, the courts are all agreed that it should npt be given to the jury in the shape 96 — People v. Cronin, 34 Cal. 191; 99 — "In no case, as it seems, ought State v. Bryan, 19 Nev. 365, 11 Pac. the force of circumstantial evidence, 317; State v. Nelson, 11 Nev. 334. sufficient to warrant conviction, be 97 — People v. Cronin, 34 Cal. 191. inferior to that which is derived 98 — Thornton v. State, 113 Ala. from the testimony of a single wit- 43, 59 Am. St. Eep. 97; Banks v. ness, the lowest degree of direct evi- State, 72 Ala. 522; Foulk v. State, 52 dence." Starkie, Ev. p. 578. Ala. 415. 886 Instructions to Jtjeies. [§403 of an instruction. 100 Accordingly, it has been held proper to refuse instructions: That "the strength of circumstan- tial evidence must be equal to the strength of one credible eye-witness ; " 1 that, to authorize conviction, ' ' circumstan- tial evidence should be just as clear and convincing as 100 — Alabama. Thornton v. State, 113 Ala. 43, 59 Am. St. Rep. 97; Bland v. State, 75 Ala. 574; Banks v. State, 72 Ala. 522; Miekle v. State, 27 Ala. 20. Kentucky. Jane .v. Com., 2 Mete. 30. Mississippi. Cicely v. State, 13 Smedes & M. 202. North Carolina. State v. Carson, 115 N. C. 743; State v. Allen, 103 N. C. 433; State v. Gee, 92 N. C. 756; State v. Norwood, 74 N. C. 248. Tennessee. Bea v. State, 8 Lea 363. In commenting on this rule, it was said in a well-reasoned case: "Un- der the operation of this rule, the juror would be compelled to act, not upon the direct effect which the evi- dence has produced in his mind. He would be not only required to inquire into the state of his mental convic- tions, to ascertain whether the evi- dence offered in support of the pros- ecution had excluded from his mind all reasonable doubt; he would be forced to go further, and to insti- tute a comparison between the de- gree of conviction produced by the evidence and that which would be the result of the testimony of one direct witness; for that would be the standard by which he would have to determine the degree of certainty in the proof which would authorize con- viction or require an acquittal. We have daily experience that the same evidence, in judicial proceedings, does not invariably produce the same degree of conviction in differ- ent minds. Hence we may well eon- elude that the legitimate force of the direct evidence of a single witness would be differently estimated by persons whose minds were differently constituted. The practical applica- tion of the principle contained in the instruction would, in effect, be to adopt a standard for estimating the force of this species of evidence, which would differ with the varying mental organization of each juror. Its practical effect, in all probabil- ity, would be, on the one hand, to lead to convictions in eases where, by the use of the more intelligible and safe rule, acquittals would fol- low; and, on the other, to produce acquittals, where, by the same test, the parties would merit conviction. ' ' Cicely v. State, 13 Smedes & M. (Miss.) 211. In another case, the reviewing court, in sustaining the refusal of such an instruction, gave the follow- ing reasons: "The instruction only 'says, in a different form, that the jury ought not to convict unless every reasonable doubt was excluded, and is, therefore unnecessary. If it means more, it would require a cer- tainty which would exclude circum- stantial evidence altogether; and the danger is that, to many minds, it would appear to fairly imply the higher degree of certainty." »Rea v. State, 8 Lea (Tenn.) 363. 1— State v. Carson, 115 N. C. 743. §404] Instructions as to Circumstantial Evidence. 887 where the facts are testified to by eye-witnesses ; " 2 or that, "Before the jury can convict the defendants, they must be as well satisfied from the combination of circumstances that the defendant did the killing, as though an eye-witness had testified before them that the defendants did the killing. ' ' 3 It has been held proper to instruct "that, where the evi- dence is entirely circumstantial, yet is not only consistent with the guilt of defendant, but is inconsistent with any other rational conclusion, the law makes it the duty of the jury to convict, notwithstanding such evidence may not be as satisfactory to their minds as the direct testimony of credible eye-witnesses. ' ' 4 § 404. Instructing that each link in the chain of circum- stantial evidence must be proved beyond reason- able doubt. , The rule that, when the state relies on circumstantial evidence to convict the defendant, each fact in a chain of facts from which the main fact in issue is to be inferred must be proved by competent evidence, and by the same weight and force of evidence as if each were the main fact in issue, has been recognized in a number of states. 5 When independent facts and circumstances are relied upon to identify the accused as the person committing the offense charged, and, taken together, are regarded as a sufficient basis for, a presumption of his guilt to a moral certainty or beyond a reasonable doubt, each material inde- pendent fact or circumstance necessary to complete such chain or series of independent facts, tending to establish 2 — Thornton v. State, 113 Ala. 43. Brookin v. State, 26 Tex. App. 3— Banks v. State, 72 Ala. 522. 121; Scott v. State, 19 Tex. App. 325; 4 — People v. Daniels (Cal.) 34 Pac. Johnson v. State, 18 Tex. App. 233; People v. Cronin, 34 Cal. 202; 385 ; Harrison v. State, 6 Tex. App. 42. State v. Slingerland, 19 Nev. 135, 7 The same rule has been variously Pae. 280. expressed as follows: "The several 5 — People v. Anthony, 56 Cal. 397;, circumstances upon which the con- People v. Stewart, 75 Mich. 21; elusion depends must be fully estab- 888 Instructions to Juries. [§404 a presumption of guilt, should be established to the same degree of certainty as the main fact which these inde- pendent circumstances, taken together, tend to establish, — that is, each essential, independent fact in the chain or series of facts relied upon to establish the main fact must be established to a moral certainty, or beyond a reason- able doubt. 6 It has been held error to refuse an instruction that, "in order to convict the defendant upon that class of evidence [circumstantial], you must be satisfied, beyond any rea- sonable doubt, that each material fact or necessary link in the chain has been proven; and, if you have any rea- sonable doubt about any one of the. necessary facts or links constituting the chain of circumstances, then you should acquit the defendant. " 7 Or to refuse an instruction that "each fact in any chain of facts from which the de- fendant's guilt is to be inferred must be proved by the same weight, degree, and force of evidence as if it were the main fact of the defendant's guilt itself. All of such facts must be consistent each with all of the others, and with the defendant's guilt, and all, taken together, must be so strong as to exclude, to a moral certainty, every rea- sonable hypothesis but that of the defendant 's guilt. ' ' 8 Yet an instruction that the jury should acquit " if a single circumstance proven is inconsistent with the guilt of the accused " was held to be properly refused, the court saying: "There is a distinction between the circumstances proven and a necessary link in the chain of circumstances. ' ' 9 The following instructions on this subject have been ap- proved: That, to warrant a conviction "on circumstan- lished by proof. They are facts 6 — People v. Ah Chung, 54 Cal. from which* the main fact is to be 398; People v. Phipps, 39 Cal. 333. inferred; and they are to be proved 7 — People v. Stewart, 75 Mich. 21. by competent evidence, and by the 8 — Johnson v. State, 18 Tex. App. same weight and force of evidence, 385. as if each one were itself the main 9 — People v. Willett, 105 Mich, fact in issue." Com. v. Webster, 5 110. Cush. (Mass.) 295, 52 Am. Dec. 711n. § 405] Instruction's, as to Circumstantial Evidence. 889 tial evidence, each fact necessary to the conclusion sought to be established must be proved beyond a reasonable doubt;" 10 that, "when the evidence against the defendant is made up wholly of a chain of circumstances, and there is reasonable doubt as to one of the facts essential to estab- lish guilt, it is the duty of the jury to acquit;" xl or that "each circumstance essential to the conclusion of the de- fendant's guilt should be fully established in the same manner and to the same extent as if the whole issue rested upon it. You must be satisfied that each link in the chain of circumstances essential to that conclusion sought to be established by the prosecution has been fully, proved be- yond a reasonable doubt, and to your entire satisfaction; otherwise, you must acquit. ' ' 12 § 405. Same — Contrary view. The likening of circumstantial evidence to a chain has been condemned in a number of cases, 13 and in one state an 10 — Brookin v. State, 26 Tex. App. of certainty. Some of these circum- 121. stances may fail of proof altogether, 11 — People v. Anthony, 56 Cal. 397. and be discarded from consideration 12 — People v. Ah Chung, 54 Cal. by the jury, yet the ultimate fact to 398. establish which they were presented 13 — "It is incorrect to speak of may be shown beyond a reasonable a body of circumstantial evidence doubt. The evidence in cases simi- as a chain, and allude to the differ- lar to the one before us has been ent circumstances as the links eon- more aptly likened to a cable. One, stituting such chain; for a chain two, or a half-dozen strands may cannot be stronger than its weakest part, yet the cable still remains so link, and, if one link fails, the chain strong that there is scarcely a pos- is broken. This figure of speech may sibility of its breaking. ' ' Clare v. perhaps be correctly applied to the People, 9 Colo. 122, 10 Pac. 799. ultimate and essential facts neces- "Ordinarily, in a case resting in sary to conviction in criminal cases, circumstances, a linked arrangement since if one be omitted, or be not of fact to fact is observable in a proven beyond a reasonable doubt, part or parts of the evidence. But a an acquittal must follow. It is not guilty person is more commonly true, however, that each and every hemmed in by a throng of cireum- of the minor circumstances intro- stances than inclosed by facts ar- duced to sustain these ultimate facts ranged chainwise. Belease from a must be proven with the same degree chain comes when the weakest link 890 Instructions to Jitkies. [§405 instruction that, "as the evidence in the case is wholly cir- cumstantial, you must be satisfied beyond a reasonable doubt of each necessary link in the chain of circumstances to establish the defendant's guilt," was refused on the ground that it is a reasonable doubt arising from a consid- eration of all the evidence in the case which warrants ac- quittal. 14 In another jurisdiction it was held proper to refuse an instruction that "every link of the chain of cir- cumstances must be so complete and consistent with the guilt of defendant as to exclude every reasonable hypothe- sis of his innocence, and so perfect and complete as to establish his guilt to a moral certainty." The reviewing court said: "The circumstances might point to two per- sons as the guilty parties; the defendant being one of the two. One or more of the circumstances proved might have no reference whatever to the defendant, or to the crime charged, or form no part of ' the chain, ' or not point to any particular fact connected with the crime, and the jury be therefore justified in not considering it at all." 1S So, an instruction that if there was any one single fact proved to the satisfaction of the jury which was inconsistent with defendant 's guilt, that was sufficient to raise a presump- gives way; but escape from a crowd cable simile, the circumstances which does not necessarily depend on the tend to establish the ultimate cir- presence or absence of one or an- cumstances or facts are aptly eom- other, or even, perhaps, the greatest pared with the strands of a cable, number, of the individuals compos- All such evidentiary matters going ing it. * * * The fault in the to prove such ultimate circumstances instruction lies in its tendency to or facts need not be established be- lead the jury to regard all the facts yond a reasonable doubt, and still as disposed in a chain, every link in each ultimate fact or circumstance which, if such were the case, would must be proved beyond a reasonable need to be proved beyond a reasona- doubt. ' ' State v. Gleim, 17 Mont- ble doubt." Leonard v. Washington 17. See also, Rayburn v. StattS Territory, 2 Wash. T. 381, 7 Pac. (Ark.) 63 S. W. 356. 872. 14 — State v. Hayden, 45 Iowa 11. ' ' The cable metaphor * * * il- See also, Smith v. State, 61 Neb. lustrates the force of circumstantial 296. evidence more clearly, perhaps, than 15 — Timmerman v. Territory, 3 does the chain comparison. In the Wash. T. 445, 17 Pac. 624. § 406] Instkuctions as to Circumstantial Evidence. 891 tion of doubt, and the jury should acquit, was held properly refused, as it permitted the consideration of different facts as distinct and independent propositions, and because it did not restrict the jury to the consideration of the mate- rial facts upon which defendant's guilt must be predi- cated. 16 In another state it has been held proper in a num- ber of decisions to refuse an instruction that, "if there is a single link wanting in the chain of circumstantial evi- dence, the jury are bound to acquit the defendant," on the ground that it is misleading. 17 § 406. Instructing that jury need not be satisfied, beyond a reasonable doubt, of each link. An instruction stating that: "The rule requiring the jury to be satisfied of a defendant's guilt beyond a reason- able doubt, in order to warrant a conviction, does not re- quire that the jury should be satisfied, beyond a reason- able doubt, of each link in the chain of circumstances relied upon to establish the defendant's guilt. It is sufficient if, taking the testimony altogether, the jury are satisfied be- yond a reasonable doubt," — has been held proper in one state, 18 but in other jurisdictions the giving of instructions the same in substance has been held reversible error, and their refusal proper. 19 The objection to such an instruc- tion is that the metaphor used is liable to confuse and mis- 16— Smith v. State, 61 Neb. 296. 18— Bressler v. People, 117 111. 17— Harvey v. State, 125 Ala. 47; 422. Grant v. State, 97 Ala. 35; Wharton 19— Colorado. Graves v. People, v. State, 73 Ala. 366; Tompkins v. 18 Col °- 170 > 32 Pac - 63 ! Clare v. Peo- State, 32 Ala. 569. P le > 9 Col °- 122 > 10 Pac - 799 - T ... . ,. ., . Montana. State v. Gleim, 17 In one of these decisions the court „, ,,_„,,..-, . „„,„. „ ^ .,_. „ , , . Mont. 17, 31 L. R. A. 294, 52 Am. St. said:. "We have found no rule of Rep ^ pac 9gg _ law which declares that circum- Nebraska . Mar i on v> sta state v> y oungj 9 any definite number of circumstances n. jy jg5_ as necessary to the sufficiency of cir- Washington. Leonard v. Washing- cumstantial proof. ' ' Tompkins v. ton Territory, 2 Wash. T. 381, 7 Pac. State, 32 Ala. 569. 872. 892 Instructions to Juries. [§406 lead, since a chain cannot be stronger than its weakest link, and, if the chain meant is the chain of the ultimate and essential facts necessary to conviction, the instruction would, of course, be erroneous. What is usually meant by such an instruction is that every minor circumstance tend- ing to prove ultimate facts need not be proven beyond a reasonable doubt, but this the jury may not understand without explanation. 20 The proposition which the court doubtless intended to announce is that it was not necessary for the state to have proven, beyond a reasonable doubt, every circumstance on which a conviction depended.. This would have been, in our judgment, good law. But while such was the purpose which the court sought to accomplish, it is exceedingly doubtful if the language employed did not mislead the jury. The metaphor used is inaccurate, and liable to mis- construction. 21 "The jury are quite as likely to have ap- plied that portion of the instruction referring to the links to those facts which the law requires to be established beyond a reasonable doubt to warrant conviction as to those evi- dentiary matters which go to prove such facts, and one or more of which may fail, while the ultimate fact might still be sufficiently established. ' ' 22 Where, however, the court instructs : ' ' The guilt of the defendant shall be established to your satisfaction, beyond a reasonable doubt, before you can convict him, but it does not require that each circum- stance in the chain of evidence shall be established to your satisfaction beyond a reasonable doubt. It is sufficient if, on the whole case, you are satisfied beyond a reasonable doubt, although the individual circumstances may not themselves be so established;" and the defendant's attor j ney argued: "This is a case depending on a chain of cir- cumstantial evidence. No chain is stronger than its weak- 20 — Clare v. People, 9 Colo. 122, 10 21 — Clare v. People, 9 Colo. 122, Pae. 799; Marion v. State, 16 Neb. 10 Pac. 799. 349; Leonard v. Washington Terri- 22 — Graves v. People, 18 Colo. 170, tory, 2 Wash. T. 381, 7 Pae. 872. 32 Pac. 63; State v. Gleim, 17 Mont. § 406] LSTSTBTJCTIONS AS TO ClKCUMSTANTIAL, EVIDENCE. 893 est link. If any link in this chain is weak or broken by the evidence of defendant, then the entire chain is broken and destroyed, and you should acquit the defendant," — it is proper for the court to charge, in order that the jury might jiot get an erroneous impression of the force and effect to be given circumstantial evidence, as follows : ' ' We often speak of a chain of circumstantial evidence. This is an expression used in these instructions, and found in the law books. It is a metaphor used to convey an idea. It is not strictly accurate. It. is more accurate to speak of the series of facts given in evidence in a circumstantial evidence case, not as links in a chain, but as threads or strands making a rope or cord of evidence. The individual fibers may be of very small strength, in themselves unable to sustain any weight of consequence, but when sufficiently numerous, and properly intertwined with others of like kind, may make the strongest cordage, — cordage sufficient to hold the largest ship in the greatest storm." 23 17, 31 L. B. A. 294, 52 Am. St. Eep. 23— Bayburn v. State, 69 Ark. 177. 655, 41 Pac. 998. CHAPTER XXXII. Instructions as to Criminal Offenses and Punishment. § 407. Instructions as to crimes in general. § 408. Necessity of instructions as to included offenses. § 409. Necessity of giving when warranted by the evidence. § 410. Propriety of particular instructions. § 411. Necessity and propriety of instructions as to punishment. § 412. Misstating punishment. § 407. Instructions as to crimes in general. A charge which predicates a finding by the jury of the constituent ingredients of an offense as a necessary pre- requisite of their finding against the defendant, without defining such ingredients, submits a question of law. 1 An instruction which states the material elements of the crime charged but which omits an essential element, is erro- neous. 2 Criminal intent is a necessary ingredient of the crime of larceny, and when the statutory definition does not express such intent in appropriate terms, it must be imported into it by the court. 3 A charge as to theft which omits the element of fraudu- lent intent is fatally defective. 4 An instruction as to em- bezzlement which follows the language of the statute can- not be objected to, in that "fraudulently" is used in place of "feloniously," and the jury is not instructed that the crime must have been done with a felonious intent. 5 Where murder is denned by statute as the "unlawful" 1 — Brooks v. State, 8 Ala. App. 4 — Wilson v. State, 59 Tex. Cr. 277. App. 623. 2— Lockhart v. State, 10 Okla. Cr. 5— People v. Gregg, 170 Mich. 168. 582, 139 Pac. 1156. 3— State v. Allen, 34 Mont. 403, 87 Pac. 177. (894) § 408] Chimin al Offenses and Punishment. 895 killing of a human being with, malice, it is better, in giving instructions, not to experiment by substituting the wor.d "wrongful" for "unlawful." 6 A definition of accessaries substantially in the language of the statute is sufficient. 7 An instruction that ' ' an accomplice to a crime is one who wil- fully and knowingly aids, encourages or assists another in the commission of a crime" is not erroneous in the use of the disjunctive "or" for "and" when the qualifying words are considered. 8 An instruction defining "wilfully" and stating that a robbery must be wilfully committed, cannot be complained of, as it merely adds td the burden of proof necessary to be made by the state. 9 Where burglary and larceny are treated as a single crime in an indictment, the court may charge that the jury can bring in a verdict of guilty or not guilty, and need not charge that it may bring in sepa- rate verdicts or a verdict of "guilty of larceny." 10 § 408. Necessity of instructions as to included offenses. In a criminal prosecution, error cannot be predicated of the omission or refusal of a trial judge to instruct as to the lesser grades of the offense charged, where there is no 6 — Jabich v. People, — ■ Colo. — , Iowa. State v. Harrison, — Iowa 143 Pac. 1092. — , 149 N. W. 452; State v. Eeasby, 7— People v. Lee,, 237 111. 272. 100 Iowa 231; State v. Sterrett, 80 8 — People v. Kosta, 14 Cal. App. Iowa 609; State v. Perigo, 80 Iowa 696, 112 Pae. 907. 37; State v. Casford, 76 Iowa 330; 9 — Madrid v. State, 71 Tex. Cr. State v. Mahan, 68 Iowa 304; State App. 420. v. Cole, 63 Iowa 695. 10— State v. Fuselier, 134 La. 632. Kansas. State v. Kornstett, 62 Alabama. Ragland v. State, 125 Kan. 221, 61 Pac. 805; State v. Ala. 12. Estep, 44 Kan. 572, 24 Pac. 986; Arkansas. Curtis v. State, 36 Ark. State v. Mowry, 37 Kan. 369, 15 Pac. 284; Benton v. State, 30 Ark. 328. 282; State v. Mize, 36 Kan. 187, 13 California. People v. Byrnes, 30 Pac. 1; State v. Hendricks, 32 Kan. Cal. 207. 559, 4 Pac. 1050; State v. Khea, 25 Colorado. Smith v. People, 1 Colo. Kan. 576. 121. Missouri. State v. Alcorn, 137 Indiana. Richie v. State, 58 Ind. Mo. 121; State v. Turlington, 102 355. Mo. 642. 896 Instructions to Juries. [§408 evidence to reduce the offense to a lesser grade. 11 In such a case, a general instruction tends to mislead the jury, 12 and, if prejudicial to the party complaining, will he suffi- cient ground upon which to reverse the judgment. 13 State v. Garrand, 5 1021; State v. Mize, 36 Kan. 187, 13 Pae. 1; Lopez v. State, 42 Tex; 299; Serio v. State, 22 Tex. App. 633. 13— State v. Mize, 36 Kan. 187, 13 Pac. 1, in which case it was held that, "where a defendant is charged with an offense which includes others of an inferior degree, the law of each degree which the evidence tends to prove should be given to the jury; but where the defendant was charged with assault and battery, and convicted of assault, and it ap- pears from the evidence that, if he was not guilty of assault and bat- tery, he was not guilty of any of- fense, an instruction as to the lower degree of the offense is inapplicable, and might have misled the jury, and, as the testimony is such as to leave the question of the defendant's guilt in doubt, ' ' the judgment should be reversed. Where the evidence does not war- rant an instruction on the lower degrees of crime, and such an in- struction is given, the fact that such instruction stated the law erroneously will not be ground for reversal if no prejudice could have resulted there- from. State v. Kotovsky, 74 Mo. 247; State v. Erb, 74 Mo. 199. An instruction correct as to mur- der in the first degree, but which might compel the jury to acquit im- properly of murder in the second de- gree, will not work a reversal. People v. Chun Heong, 86 Cal. 329; State v. Ellis, 74 Mo. 207. If the jury find a verdict of mur- der in the first degree, a reversal 11 — Oregon Ore. 216. Tennessee. Williams v. State, 3 Heisk. 376; Ray v. State, 3 Heisk. 379, note; State v. Parker, 13 Lea 221; State v. Hargrove, 13 Lea 178; Good v. State, 1 Lea 293. Texas. Mayfield v. State, 44 Tex. 59; Blocker v. State, 27 Tex. App. 41; Trumble v. State, 25 Tex. App. 631; Henning v. State, 24 Tex. App. 315; May v. State, 22 Tex. App. 595; Jackson v. State, 18 Tex. App. 586; Johnson v. State, 18 Tex. App. 385; Bryant v. , State, 18 Tex. App. 107; Rhodes v. State, 17 Tex. App. 579; Gomez v. State, 15 Tex. App. 327; Smith v. State, 15 Tex. App. 139; Darnell v. State, 15 Tex. App. 70; Davis v. State, 14 Tex. App. 645; Neyland v. State, 13 Tex. App. 536; Lum v. State, 11 Tex. App. 483; Hubby v. State, 8 Tex. App. 597; Collins v. State, 6 Tex. App. 72; Gat- lin v. State, 5 Tex. App. 531; Taylor v. State, 3 Tex. App. 387; Washing- ton v. State, 1 Tex. App. 647 Holden v. State, 1 Tex. App. 226 Browning v. State, 1 Tex. App. 96 Steiner v. State, 33 Tex. Cr. App. 291; Hodge v. State (Tex. Cr. App.) 26 S. W. 69. Washington. Smith v. United States, 1 Wash. T. 262. 12 — The practice of laying down general principles relating to the offense charged in all its degrees, without reference to the evidence in the case, is objectionable, as tending to confuse and perplex the jury. Curtis v. State, 36 Ark. 284; People v. Chun Heong, 86 Cal. 329, 24 Pac. § 408] Criminal Offenses and Punishment. 897 Where, in a prosecution for violating a statute describ- ing the offense of wilfully and maliciously throwing vitriol upon the person of another, with the intent to injure the flesh or disfigure the body of such person, the only ques- tion left open by the evidence is one as to the intent of defendant, the wilful and malicious throwing being abun- dantly proven, it is not error to fail to charge upon simple assault. 14 On a trial for robbery, if there is no evidence to show the offense to be larceny, a failure to instruct as to larceny is not error. 15 It has also been held that an instruc- tion as to larceny is properly refused where the defendant is accused of burglary, since larceny is not included in burglary. 10 Where the evidence, if true, sustains an in- dictment charging an assault with intent to commit rape, no instructions should be given as to common assault. 17 Where an indictment charges a felonious assault within the exact terms of a statute, and no effort is made to prove any* other offense, it is not error to fail to instruct on the offense of maiming, wounding, or disfiguring, prohibited by another statute. 18 Where the defendant is charged with assault with intent to murder, he may be convicted of simple assault, and where the weapon used is not a deadly weapon, and the injuries inflicted are not serious, it may be error not to charge upon simple assault; but where the evidence shows that the injuries inflicted by defendant' were quite serious, and the weapon used might reasonably be found by the jury to be a deadly weapon, the failure to submit the question of simple assault to the jury will not work a reversal. 19 An incorrect charge on man- slaughter is not cause for reversal if the defendant, if guilty will not be warranted by the giving 15 — State v. Reasby, 100 Iowa 231. of an instruction as to murder in the 16 — State v. Leonard, 135 Iowa second degree, when the act, if not 371. done in self-defense, must have been 17 — State v. Alcorn, 137 Mo. 121. murder in the first degree. State v. 18 — State v. Johnson, 129 Mo. 26. Ellis, 74 Mo. 207. „ 19— Hodge v. State (Tex. Cr. 14 — People v. Stanton, 106 Cal. App.) 26 S. W. 69. 139, 39 Pac. 525. Blashfield Vol. 1—57 ' 898 Instructions to Jubies. [§ 408 of any crime, is guilty of murder; 2p and the court does not err in not submitting included offenses where the evidence shows that defendant was guilty of manslaughter or should have been acquitted. 21 Where, Under the evidence, "the defendant is either guilty of murder in the first degree or innocent of any offense, it is unnecessary to charge * * * as to any degree of the offense other than murder in the first degree." 22 An instruction defining murder in the second degree on the trial of an indictment for murder should not be given unless there is evidence in the case tending to prove that the crime was or may have been of that grade. 23 On a prosecution for murder in the first degree, if the evidence is indisputable that the deceased died from the effects of a wound inflicted by the defendant, it is not neces- sary for the court to instruct as to crime less in degree than that of criminal homicide. 24 If there is no evidence tending to prove that the crime was manslaughter, or that the killing was excusable or justifiable, it is not error to instruct that, "if the killing was wilful (that is, inten- tional), deliberate, and premeditated, it is murder in the first degree; Otherwise, it is murder in the second de- gree. " 25 In a prosecution for murder, where it is admitted that defendant, by violence, caused the death of deceased, and claims that his act was done in self-defense, and was not unlawful, it is not necessary to instruct as to offenses lower than manslaughter, which may be included in the crime of murder charged. 26 And where there is no ques- tion but that the defendant inflicted the mortal wound, and the only question is whether he did so wilfully, it is not necessary to instruct the jury as to assault with intent 20 — Eagland v. State, 125 Ala. 12. State v. Garrand, 5 Ore. 216; O'Con- 21— State v. Luther, 150 Iowa 158. nell v. State, 18 Tex. 343. 22 — State v. Kornstett, 62 Kan. g4 — State v. Froelick, 70 Iowa 213. 221, 61 Pac. 805. 25— People v. Welch, 49 Cal. 174. 23— People v. Byrnes, 30 Cal. 206; 26— State v. Mahan, 68 Iowa 304. § 409] Criminal Offenses and Punishment. 899 to inflict great bodily injury, assault and battery, and other offenses less than manslaughter. 27 §409. Necessity of giving when warranted by the evi- dence. Instructions as to lower grades of an offense should be given when warranted by the evidence. 28 This dujy is not dependent upon the court's judgment of the strength or weakness of the testimony supporting the theory, it being the prerogative of the jury to pass upon the probative force of the testimony. 29 And even though there is only slight evidence that the offense committed may have been of a lower degree than the one charged, it is the duty of the court to define such lower degree, and to give the law applicable to such lower offense. 30 If there is any doubt in the judge's mind as to the degree of the offense estab- lished, the law of the lesser as well as of the greater offense should be given in charge to the jury. 31 .« Accordingly, instructions on the lower grades of offense should be given, although the only testimony tending to show a lower degree of crime is that of defendant himself, 32 27 — State v. Perigo, 80 Iowa 37. 30 — Kansas. State v. Evans, 36 28 — Arkansas. Roberson v. State, Kan. 497, 13 Pac. 849; State v. Mize, 109 Ark. 420. 36 Kan. 187, 13 Pac. 1. Georgia. Jackson v. State, 76 Ga. Kentucky. Madison v. Com., 13 473; Crawford v. State, 12 Ga. 142. Ky. L. Rep.. 313. Kansas. State v. Mize, 36 Kan. Missouri. State v. Elliott, 98 Mo. 187, 13 Pac. 1. 150. Michigan. People v. Palmer, 96 New Mexico. Faulkner v. Terri- Mich. 580. tory, 6 N. M. 464, 30 Pac. 905. Missouri. State v. Young, 99 Mo. Texas. Blocker v. State, 27 Tex. 666; State v. O'Hara, 92 Mo. 59; App. 16; Holden v. State, 1 Tex. State v. Banks, 73 Mo.. 592. App. 225. New Mexico. Territory v. Romero, 31 — Holden v. State, 1 Tex. App. 2 N. M. 474. 225. Evidence held not to justify sub- 32 — State v. Partlow, 90 Mo. 608, missi6n of higher culpability than 59 Am. Rep. 31; State v. Palmer, 88 manslaughter. Whiten v. State, 71 Mo. 568; State v. Banks, 73 Mo. 592. Tex. Cr. App. 555. 29— Liskosski v. State, 23 Tex. App. 165. 900 Instructions to Juries. [§ 409 and although' his testimony is at variance with that of every other witness. 33 For the purpose of instructing the jury, the defendant's testimony "occupies the same footing as that of any other witness." 34 Nevertheless, it has heen held not erroneous to refuse an instruction on the lower degrees of crime, where it is a physical impossibility that defend- ant's testimony could be true. "Neither courts nor juries should be required to base their actions or belief on physical impossibilities. ' ' 35 Usually it is held that the court is re- quired to instruct as to lower degrees of an offense, although no request for instructions of this character is made, 36 or, if made, state the law incorrectly, 37 but in one case in a prose- cution for felony it was held that error could not be predi- cated on the failure of the trial court to define a lesser offense included in the crime charged, unless requested to do so. 38 The right to instructions of this character is also waived if the defendant asks that the instructions be con- fined to the offense charged. 39 But the right is not waived by his counsel's insisting, during the course of the trial, that he is guilty of the offense charged, or of none at all. 40 §410. Propriety of particular instructions. If the court assumes to give instructions relating to sev- eral grades of offense, the jury should be made to under- stand to what grade each instruction applies. 41 An in- struction that, if the jury find that certain facts, which constitute the offense of assault with intent to commit mur- der, are proved beyond a reasonable doubt, they must find the defendant guilty of that offense, is not erroneous, as the law does not intend a person to be found guilty of a 33— State v. Banks, 73, Mo. 592. 37— State v. Young, 99 Mo. 666. 34— State v. Palmer, 88 Mo. 568. 38— MoConnell v. State, 77 Neb. 35 — State v. Turlington, 102 Mo. 773. 642. ' 39— State v. Keele, 105 Mo. 38. 36 — Dolan v. State, 44 Neb. 643; 40 — State v. Johnson, 8 Iowa 525, Vollmer v. State, 24 Neb. 838; Chap- 74 Am. Dec. 321. pel v. State, 7 Cold. (Tenn.) 92; Ross 41— Burris v. State, 38 Ark. 221. v. State, 23 Tex. App. 689. § 411] Ckiminal Offenses and Punishment. 901 lesser crime than that of which the evidence shows him guilty. 42 So, an instruction that, if the jury had a reason- able doubt as to the degree of the offense of which the de- fendant was guilty, "they should find him guilty of that offense highest in degree of which they may have no rea- sonable doubt, ' ' is not prejudicial error, though not in con- formity to the statute. 43 § 411. Necessity and propriety of instructions as to pun- ishment. Where the jury are not authorized by statute to pre- scribe the punishment to be inflicted for the commission of a crime, no error is committed in refusing to instruct them what the penalty might be if the defendant is found guilty as charged, or if convicted of a lesser offense included within the greater. 44 Under such circumstances there is no legitimate object to be subserved by instructing the jury as to the .punishment which may be inflicted as a result of their verdict, 45 and the verdict of the jury should not be influenced by any consideration of the degree of punishment, and information with regard thereto is likely to create sympathy .or prejudice. 46 In one case, a different conclusion was reached as to this rule, 47 but the opinion, is not a well considered one, and is opposed to the general doctrine. 48 The matter of instructing as to the consequences of a verdict -is, however, discretionary with the trial court, and 42— Crowell v. People, 190 111. 508. v. Ryan, 55 Hun (N. Y.) 214; Wood 43— Ireland v. Com., 22 Ky. L. v. People, 1 Hun (N. Y.) 381. Rep. 478. Contra, People v. Cassiano, 30 Hun 44— State v. Daley, 54 Ore. 514, (N. Y.) 388. 103 Pao. 502, 104 Pae. 1. The verdict should not be affected 45 — Russell v. State, 57 Ga. 420; by any such considerations. Wood State v. Peffers, 80 Iowa 580; People v. People, 1 Hun (N. Y.) 381. v. Ryan, 55 Hun (N. Y.) 214. 47 — People v. , "Cassiano, 30 Hun 46— State v. Peffers, 80 Iowa 580; (N. Y.) 388. State v. Ragsdale, 59 Mo. App. 590; 48 — Chief Justice Norval in Ford Ford v. State, 46 Neb. 390; Keller v. v. State, 46 Neb. 390. Strausburger, 90 N. Y. 379; People 902 Instructions to Juries. [§ 411 while such an instruction may be important in order to induce the jury to exercise greater care in weighing the evidence, 49 it has been said that it is much the better prac- tice for the cOurt to say nothing about the punishment in its charge.? It is proper, however, to instruct the jury that they have nothing to do with assessing the punish- ment if they find the defendant guilty, and that this is a matter of law devolving upon the court. 51 And in cases where the jury have the right under the statute to recom- mend that one convicted of a felony may be punished as for a misdemeanor, the trial judge must in effect apprise the jury that the recommendation itself will be valueless to the accused unless approved by the judge. 52 A part of a charge to the effect that mercy and sentiment do not rest with the jury, is not improper or erroneous, 53 and a cautionary instruction that the gravity or magnitude of the punishment prescribed by law for the offense charged should not be allowed to affect the jury's judg- ment or determine their verdict, does not indicate bias on the part of the court and is not erroneous. 54 In a prosecution for selling intoxicating liquors an in- struction that if the jury find the defendant guilty they "must" assess a certain fine, is erroneous in the use of "must" for "may." 55 When the matter of fixing the punishment to be inflicted is placed by statute in the hands of the jury, it is the duty of the court to instruct the jury upon the question of pun- ishment, when properly requested to do so, or without a request, in jurisdictions where the court is required to charge on the law of the case, whether requested or not, 56 49_Keller v. Strasburger, 90 N. 53— Eoberson v. State, 183 Ala. 43. Y. 379. 54 — State v. Baldea, 133 Iowa 158. 50— Eussell v. State, 57 Ga. 424. 55— Webb* v. State, 162 Ala. 58. 51 — State v. Howard, 118 Mo. 144; 56 — As to the necessity of a re- State v. Avery, 113 Mo. 501. quest, see §§ 156, et seq., ante. 52— Frazier v. State, 15 Ga. App. 365; Taylor v. State, 14 Ga. App. 492. § 411] Criminal Offenses and Punishment. 903 and a failure to do so is reversible error. 57 Of course, Where a request is necessary, and none, is made, a failure to instruct as to punishment is not available error. 58 Where the jury have an option to choose between two alternative' punishments, it is reversible error for the court to fail to give to the jury, in its charge, the statute providing for such alternative punishments. 59 A charge which states the term of confinement, but does not state where the confine- ment was to be, has been held erroneous as not stating the law of the case. 60 Where an instruction defining an offense tells the jury what the penalty is, and such penalty is stated in submitting the issues, the instructions are not erroneous as making the penalty too prominent. 61 It is not proper for the court to tell the jury in a misdemeanor case that the county attorney has waived the jail penalty, although the error may not warrant reversal. 62 Where the jury is invested by statute with the discre- tion of commuting the death penalty to a life sentence, in case of extenuating circumstances, this discretion is, never- theless, not an arbitrary one, and the court may properly instruct them as to its exercise; 63 but the court, in giving its instruction, should say nothing which will interfere with the proper exercise of this discretion. 64 When the court' 57 — Eingo v. State, 2 Tex. App. 62 — Love v. State, 71 Tex. Cr. 291; Ceaure v. State, 1 Tex. App. 20; App. 259. Prinzel v. State, 35 Tex. Cr. App. 63— People v. Jones, 63 CaJ. 168. 274; Brannigan v. People, 3 Utah See als °, cases cited in State v. Pel- 488; Calton v. Utah, 130 U. S. 83, tJ er, 2 1 N. D. 188. 32 L. Ed. 870. 64 — Peo P le v - Bawden, 90 Cal. 195, 58— Honeycutt v. State, 8 Baxt. 27 Pac - 204 5 Peo P le v - Briok > 68 Cal. (Tenn.) 371; State v. Becton, 7 Baxt. "°» 8 Pae " S58 ' Peo P le v - Mnrback, ;_, ( ,„„ 64 Cal. 369, 30 Pae. 608. See cases (lenn.; i . cited in State v. Peltier, 21 N. D. 59 — Eingo v. State, 2 Tex. App. ,„„ 291. 188. Where a statute allows the -jury 60-Hamilton v. State, 2 Tex. App. to fix the penalty in case of omy £ 494. tion of murder in the first degree, 61— Ulloa v. State, — Tex. Cr. and i t is left to the j nry to do tMa App. — , 163 S. W. 732. by the exercise of its own discretion, 904 Instbu'ctions to Jueies. [§ 411 advises the jury as to the grounds or reasons for inflicting the death penalty or life imprisonment, he invades the province of the jury, and particularly so when he only in- structs them as to the reasons for inflicting the extreme penalty, and such error is fatal. 65 § 412. Misstating punishment. It is error to give an incorrect instruction as to the pun- ishment or penalty which may be inflicted on a defendant, 66 as where the court misstates the maximum punishment; 67 or substitutes in the instructions a different and higher punishment for an offense than is prescribed by statute. 68 Where an instruction only states the maximum term of imprisonment and omits to state the minimum or alterna- tive punishment that may be imposed, a judgment of conviction will be reversed. 69 And "an instruction over- stating the maximum fine, and omitting to state the mini- mum term of imprisonment," is also erroneous. 70 If the punishment may be either by fine, or imprisonment, it is error not to instruct that the jury might inflict the im- prisonment without the fine. 71 And where a statute pro- vides that one convicted of assault may be both fined and the trial judge cannot indicate in Tex. Cr. App. 28; Hargrove v. State any way the penalty which the jury (Tex. Cr. App.) 30 S. W. 801. should fix. State v. Peltier, 21 N. Virginia. Whitlock v. Com., 89 D. 188. Va. 340; Mitchell v. Com., 75 Va. 65— State v. Peltier, 21 N. D. 188. 856. 66 — California. People v. Griffith, An instruction which fails to state 146 Cal. 339, 80 Pac. 68. the correct punishment is error. Illinois. Watson v. People, 134 Graham v. State, — Tex. Cr. App. 111. .374. — , 163 S. W. 726. Missouri. State v. Wheeler, 108 67— Hargrove v. State (Tex. Cr. Mo. 658; State v. McNally, 87 Mo. App.) 30 S. W. 801. 644; State v. Sands, 77 Mo. 118. 68— Wells v. State, 5 Okla. Cr. 22, Oklahoma. Williams v. State, 7 113 Pac. 210. Okla. Cr. 529, 124 Pac. 330. 69— Colbert v. State, 4 Okla. Cr. Texas. Graham v. State, 29 Tex. 487, 113 Pac. 561. App. 31 ; Williams v. State, 25 70 — State v. Sands, 77 Mo. 118. Tex. App. 89; Rodriguez v. State,. 71— Iryin v. State, 25 Tex. App. 8 Tex. App. 129; Graham v. State, 73, 558. §412] Criminal Offenses and Punishment. 905 imprisoned, an instruction that the penalty is a fine "or" imprisonment is fatally erroneous. 72 .So, it is error to say unqualifiedly that a verdict of guilty will carry with it im- prisonment in the penitentiary for a prescribed period, when such punishment is only authorized in case of a for- mer conviction; 73 or "to state the minimum punishment for an offense as a term of imprisonment longer than that pre- scribed by law as the minimum penalty. 74 And if a penalty is fixed by statute for a specific theft,, it is error to state, as the penalty, that which is prescribed for theft in gen- eral. 75 In Texas, an erroneous instruction upon the question of punishment is in all cases reversible error, without regard to whether the defendant was. harmed by it or not, 76 but in other jurisdictions the rule is not so rigid and the doc- trine of error without injury has been held to apply. 77 So, a misstatement of the minimum punishment is harmless error where the jury assess a punishment much larger than the minimum punishment; 7S and an overstatement of the minimum punishment is no ground for reversal where the jury assessed the punishment at the maximum amount, 72— Moody v. State, 30 Tex. App. 338. Contra, Work v. State, 3 Tex. 422. App. 234. 73 — Watson v. People, 134 111. 374. Error warrants reversal though 74 — State v. McNally, 87 Mo. 644; the error inures to the benefit of de- Williams v. State, 25 Tex. App. 89. fendant, or though the error does 75 — Jones v. State, 7 Tex. App. not relate to the offense of which 338. the defendant was convicted. Gra- 76 — Buford v. State, 44 Tex. 525; ham v. State, 29 Tex. App. 31. Graham v. State, 29 Tex. App. 32; 77 — "But on the other hand where Irvin v. State, 25 Tex. App. 558; the instruction upon this point is cor- Williams v. State, 25 Tex. App. 76; rect in point of law, this court has Bostie v. State, 22 Tex. App. 136; declared that while it is an impropri- Gardenhire v. State, 18 Tex. App. 565; ety and irregularity it is not such Howard v. State, . 18 Tex. App. irregularity or impropriety as should 348; Sanders v. State, 17 Tex. work a reversal of the case." Peo- App. 222; Wilson v. State, 14 pie v. Griffith, 146 Cal. 339, 80 Pae. Tex. App. 527; Veal v. State, 8 Tex. 68. App. 478 ; Jones v. State, 7 Tex. App. 78 — Quinn v. People, 123 111. 333. 906 Instructions to Juries. [§ 412 which has been correctly stated to them. 79 So, where the court incorrectly tells the jury that a designated statute fixes the minimum punishment for the offense with which defendant is charged, and the minimum punishment, which is in fact regulated by another statute, is the same as that fixed by the statute referred to by the court in its charge, the defendant is not prejudiced. 80 Also, where the court overstates the maximum punishment, this will not be ground for reversal where the jury find defendant guilty, but leaves the court to fix the punishment, and the court sentences him for a much less period than the maximum allowed by statute. 81 79— Mitchell v. Com., 75 Va. 856. 81— State v. Wheeler, 108 Mo. 658. 80— Whitlock v. Com., 89 Va. 340. CHAPTER XXXIII. Cuke of Error. § 413. Introductory statement. ,_, § 414. Errors in the giving or refusing of instructions as affected by the verdict. § 415. Same — Illustrations — Civil cases. § 416. Same — Illustrations — Criminal cases. § 417. Cure of error in the admission of .evidence by' instructions. § 418. 'Request for instructions withdrawing evidence. § 419. Objections as a basis of requested instructions to withdraw evi- ' dence. „ § 420. Sufficiency of instructions withdrawing evidence. § 421. Instructions requiring jury to disregard evidence offered or ex- cluded. § 413. Introductory statement. It has been noted in a previous chapter that instructions are to be considered as a whole, and that when so consid- ered, error in the giving of an instruction may be cured by the other charges which have been submitted to the jury. 1 In a like manner, error in the giving or refusing of instructions may be cured by the verdict rendered, 2 and various errors committed at the trial may be cured by the giving of proper instructions correcting such errors. Thus the majority of the courts hold that error in the admission of evidence may be so cured. 3 Properly speaking, the cure of errors committed at the trial is a matter of trial prac- tice, and without the scope of this work, but the matter of curing error in the admission of evidence is so closely re- lated to the giving and refusing of instructions that it has been thought advisable to state such rules in detail. 4 1 — See ch. XVI, ante. 3 — See §§ 417, et seq., post. 2— See §§ 414-416, post. 4— See §§ 414-421, post. ( 907 ) 908 Instetjctions to Jueies. [§414 § 414. Errors in the giving or refusing of instructions as affected by the verdict. Error in the giving of an erroneous instruction is con- sidered harmless and not a ground for reversal, where the verdict is clearly right according to the law and the evi- dence, 5 or is the only one which could have been found 5 — Alabama. North Alabama Traction Co. v. Thomas, 164 Ala. 191; Glass v. Memphis & C. B. Co., 94 Ala. 581. Arkansas. St. Louis, I. M. & S. B. Co. v. Holmes, 96 Ark. 339. California. Mott v. Minor, 11 Cal. App. 774, 106 Pao. 244. Colorado. Northern Colorado Ir- rigation Co. v. Richards, 22 Colo. 450, 45 Pac. 423; Buckey v. Phen- icie, 4 Colo. App. 204, 35 Pac. 277. Florida. Pensacola Elec. Co.' v. Bissett, 59 Pla. 360; Southern Exp. Co. v. Van Meter, 17 Pla. 783, 35 Am. Eep. 107; Prescott v. Johnson, 8 Pla. 391. Georgia. Fry v. State, 81 Ga. 646; MeCurdy v. Binion, 80 Ga. 691; McQueen v. Pletcher, 77 Ga. 445; Clay v. Barlow, 73 Ga. 788; Myric v. Hicks, 15 Ga. 155; Johnson v. State, 14 Ga. 55. Illinois. Bast St. Louis Connect- ing Ry. Co. v. O'Hara, 150 111. 580; Needham v. People, 98 111. 275; Parker v. Fisher, 39 111. 164; New England Fire & Marine Ins. Co. v. Wetmore, 32 111. 221; Elam v. Badger, 23 111. 498;Dishon v. Schorr, 19 111. 59; Newkirk v. Cone, 18 111. 449 ; Harding v. St. Louis Nat. Stock Yards, 149 111. App. 370, aff'd 242 111. 444; Squire Dingee Co. v. Mc- Donald, 61 111. App. 607; Ennis v. Pullman's Palace Car Co., 60 111. App. 398; Gray v. Knittle, 56 111. App. 302. Indiana. Worley v. Moore, 97 Ind. 15; Poland v. Miller, 95 Ind. 387, 48 Am. Eep. 730; Veatch v. State, 60 Ind. 291; Wilds v. Bogan, 57 Ind. 453; Musselman v. Pratt, 44 Ind. 126; Lafayette & I. E. Co. v. Adams, 26 Ind. 76; City of Logans- port v. Dunn, 8 Ind. 378; Short v. Scott, 6 Ind. 430; Muirhead v. Sny- der, 4 Ind. 486; Sogers v. Maxwell, 4 Ind. 243; Sherry v. Eeynolds, 3 Ind. 201; Bicknese v. Brandl, 46 Ind. App. 269; Chicago, St. L. & P. E. Co. v. Butler, 10 Ind. App. 244; Amick v. O'Hara, 6 Blackf. 258. Iowa. Citizens' Railway & Light Co. v. Forepaugh & Sells Bros. Shows, 149 Iowa ,355; State v. Hall, 97 Iowa 400; Tuck v. Singer Mfg. Co., 67 Iowa 576; Hall v. Stewart, 58 Iowa 681; Gwinn v. Crawford, 42 Iowa 63; Bondurant v. Crawford, 22 Iowa 40; Dunham v. Dennis, 9 Iowa 543; McGregor v. Armill, 2 Iowa 30. Kansas. Eouse v. Harry, 55 Kan. 589, 40 Pac. 1007; Head v. Dyson, 31 Kan. 74, 1 Pac. 258; Atchison, T. & S. F. E. Co. v. Huitt, 1 Kan. App. 781. Kentucky. Chesapeake & O. Ey. Co. v. Eichard's Adm'r (Ky.) 126 S. W. 1105. Louisiana. Keene v. Lizardi, 8 La. 32. Maine. Webber v. Eead, 65 Me. 564. Michigan. Cook v. Ganny, 96 Mich. 398; Saginaw Union St. Ry. v. Michigan Cent. E. Co., 91 Mich. 657; Finan v. Babcock, 58 Mich. 301; §414] Cure op Ebeoe. 909 consistent with the evidence, 6 or where an improper in- struction could not have influenced the verdict, 7 or where Morse v. Byam, 55 Mich. 594; Case v. Dewey, 55 Mich. 116; Kramer v. Gustin, 53 Mich. 291; Marcott v. Marquette, H. & O. E. Co., 49 Mich. 99; Clark v. McGraw, 14 Mich. 139; Niagara Fire Ins. Co. v. De Graff, 12 Mich. 124. Minnesota. Smith & Nixon Piano Co. v. Lydick, 110 Minn. 82; Dunlap v. May, 42 Minn. 309. Mississippi. Thomas v. State, 61 Miss. 60; Wilson v. Kohlheim, 46 Miss. 346; Evan v. State, 44 Miss. 762; Head v. State, 44 Miss. 731;. Memphis & C. E. Co. v. Whitfield, 44 Miss.. 466, 7 Am. Eep. 699. n; Hanks v. Neal, 44 Miss. 212; Josephine v. State, 10 George 613; Mask v. State, 7 George , 77 ; Holloway v. Arm- strong, 1 George 504; Hill v. Calvin, 4 How. 231; Wiggins v. McGimpsey, 13 Smedes & M. 532. Missouri. Vogg v. Missouri Pac. Ey. Co., 138 Mo. 172; Otto v. Bent, 48 Mo. 23; Cowherd v. St. Louis & S. P. E. Co., 151 Mo. App. 1; Long v. Bolen Coal Co., 56 Mo. App. 605; Doud v. Eeid, 53 Mo. App. 553. Montana. Neill v. Jordan, 15 Mont. 47, 38 Pac. 223; Hogan v. Shuart, 11 Mont. 498. Nebraska. Whelan y. City of Plattsmouth, 87 Neb. 824; Stratton v. Dole, 45 Neb. 472;- O'Hara v. Wells, 14 Neb. 403; Lamb v. Hotch- kiss, 14 Neb. 102; Meredith v. Ken- nard, 1 Neb. 312. North Carolina. Cole v. Cole, 23 N. C. 460. Ohio. Creed v. Commercial Bank of Cincinnati, 11 Ohio 489. Pennsylvania. Eldred v. Hazlett's Adm'r, 38 Pa. St. 16; Deford v. Eeynolds, 36 Pa. St. 325. South Carolina. Caldwell v. Dun- can, 87 S. C. 331; Carr v. Mouzon, 86 S. C. 461; State v. Slack, 1 Bailey 330. Texas. Galveston, H. & S. A. Ey. Co. v. Johnson, 74 Tex. 256; City of Galveston v. Morton, 58 Tex. 409; Texas & P. Ey. Co. v. Isenhower (Tex. Civ. App.) 131 S. W. 297; Clarkson v. Whitaker, 12 Tex. Civ. App. 483; Galveston, H. & S. A. Ey. Co. v. Chittim (Tex. Civ. App.) 28 S. W. 700; B, C. Evans Co. v. Eeeves, 6 Tex. Civ. App. 254. Vermont. Sanborn v. Cole, 63 Vt. 600. Virginia. Fentress v. Steele & Sons, 110 Va. 578; Binns v. Waddill, 32 Grat. 588. Washington. City of Tacoma v. Wetherby, 57 Wash. 295, 106 Pac. 903; Secor v. Oregon Improvement Co., 15 Wash. 35, 45 Pac. 654; Davis v. Gilliam, 14 Wash. 206, 44 Pac. 119. West Virginia. Bank of Hunting- ton v. Napier, 41 W. Va. 481. Wisconsin. Pireaux v. Simon, 79 Wis. 392. English. Wickes v. Clutterbuck, 2 Bing. 483. 6— Greer v. Lafayette County Bank, 128 Mo. 560; Bushey v. Glenn, 107 Mo. 331; Fitzgerald v. Barker, 96 Mo. 661, 9 Am. St. Eep. 375; Stratton v. Dole, 45 Neb. 472; West- ern U. Tel. Co. v. Lowrey, 32 Neb. 732; Knowlton v. Mandeville, 20 Neb. 59. See also, § 417, post. 7 — Illinois. Avery v. Moore, 133 111. 74; Fleischbein v. Strother, 149 111. App. 356. Indiana. Whitewater E. Co. v. Bridgett, 94 Ind. 216; Northern 910 Instructions to Juries. [§414 the verdict affirmatively shows that the jury were not mis- led by or did not follow the erroneous instruction. 8 Thus, no prejudice results from the giving of an erroneous in- struction, where the jury find against the hypothesis on which it is predicated, for in that case the instruction is rendered immaterial, as it could not have affected the ver- dict or changed the result. 9 So, error in leaving a question of law to the jury is harmless, where the jury decide it Assur. Co. of London v. Carpenter, 52 Ind. App. 432. Iowa. Lathrop v. Central Iowa Ry. Co., 69 Iowa 105. Kansas. Ft. Scott, W. & W. Ry. Co. v. Jones, 48 Kan. 5J, 28 Pac. 978. Mississippi. Josephine v. State, 10 George 613. Missouri. Brockman Commission Co. v. Aaron, 145 Mo. App. 307; Potter v. Metropolitan St. R. Co., 142 Mo. App. 220. Texas. Houston, E. & W. T. Ry. Co. v. Hardy, 61 Tex. 230; Wrighton v. Butler (Tex. Civ. App.) 128 S. W. 472; Bender v. Peyton, 4 Tex. Civ. App. 57; Loustaunau v. Lambert, 1 Tex. Civ. App. 434. Washington. Thornton v. Dow, 60 . Wash. 622, 32 L. R. A. (N. S.) 968n, ' 111 Pae. 899. 8 — Alabama. Meighan v. Birm- ingham. Terminal Co., 165 Ala. 591. Illinois. Keegari v. Kinnare, 123 111. 280; Kirby v. Wilson, 98 111. 240. Kansas. Woodman v. Davis, 32 Kan. 339, 91 Am. Dec. 589, 4 Pac. 262. Michigan. Brockway v. Patter- son, 72 Mich. 122, 1 L. R. A. 708. Missouri. State v. Daugherty, 106 Mo. 182. 9 — California. People v. Wallace, 101 Cal. 281, 35 Pac. 862. Illinois. Pennsylvania Coal Co. v. Kelly, 156 111. 9. Indiana. Ronan v. Meyer, 84 Ind. 390; Louisville & N. R. Co. v. Orr, 84 Ind. 50; Ryan v. Begein, 79 Ind. 356. Iowa. White v. Byam, 96 Iowa 166; National Horse Importing Co. v. Novak, 95 Iowa 596. Kansas. Wilkes v. Wolback, 30 Kan. 375, 2 Pac. 508; Edwards v. Porter, 28 Kan. 700; Mcintosh v. Crawford County Com'rs, 13 Kan. 171. Michigan. Guerold v. Holtz, 103 Mich. 118; English v. Caldwell, 30 Mich. 362. See also, White v. Camp- bell, 25 Mich. 463. Missouri. Schaefer v. St. Louis & S. Ry. Co., 128 Mo. 64. Nebraska. Olsen v. Meyer, 46 Neb. 240. Ohio. Loudenback v. Collins, 4 Ohio 251. South Carolina. Mobley v. Char- lotte, C. & A. R. Co., 42 S. JO. 306; Devereux v. Champion Cotton Press Co., 17 S. C. 72. Texas. Goodbar v. City Nat. Bank, 78 Tex. 461; Vickers v. Ken- nedy (Tex. Civ. App.) 34 S. W. 458. Vermont. Sanborn v. Cole, 63 Vt. 590, 14 L. E. A. 208n. Wisconsin. Palmer v. Banfield, 86 Wis. 441; Atkinson v. Goodrich Transp. Co., 69 Wis. 5. United States. Sunset Telephone & Telegraph Co. v. Day, 17 C. C. A 161, 70 Fed. 364. §414] Cube of Error. 911 correctly. 10 Special findings of the jury may frequently show that they were not misled by the giving of an erro- neous instruction. 11 It is only where, from the whole case, the jury might have rendered a different verdict, that the giving of improper instructions will be held reversible error. 12 The refusal of requested instructions which might prop- erly have been given does not warrant the setting aside of a verdict which conforms to the law and the evidence. 13 In such case the error is harmless. 14 It is also harmless error 10— Webb v. Portland & K. B. Co., 57 Me. 117; Woodman v. Chesley, 39 Me. 45; Osgood v. Lansil, 33 Me. 360; Pike v. Warren, 15 Me. 390; Rogers v. Abbot, 206 Mass. 270, 138 Am. St. Bep. 394; Allen v. Duffle, 43 Mich.-l, 38 Am. Bep. 159n; Hall v. Suydam, 6 Barb. (N. Y.) 83; Miller v. Eagle Life & Health Ins. Co., 2 E. D. Smith (N. Y.) 268; Cumpston v. MeNair, 1 Wend. (N. Y.) 457; Thornburgh v. Mastin, 93 N. C. 258; Moore v. Parker, 91 N. C. 276. See also, Carson v. McCormiek Harvest- ing Mach. Co., 36 Mo. App. 462; Gal- veston, H. & S. A. By. Co. v. John : son, 74 Tex. 256; Maritime Ins. Co. v. M. S. Dollar Steamship Co., 100 C. C. A. 547, 177 Fed. 127. 11— Dickey v. Shirk, 128 Ind. 278; Cline v. Lindsey, 110 Ind. 337; Por- ter v. Waltz, 108 Ind. 40; Woolery v. Louisville, N. A^ & C. By. Co., 107 Ind. 381, 57 Am" Bep. 114; Rick- etts v. Harvey, 106 Ind. 564; Worley v. Moore, 97 Ind. 15; Moore v. Lynn, 79 Ind. 299; tJhl v. Harvey, 78 Ind. 26; Hill v. Hill, 45 Ind. App. 99; Bigelow v. Wygal, 52 Kan. 619, 35 Pae. 200; Chicago, K. & W. R. Co. v. Parsons, 51 Kan. 408, 32 Pac. 1083; Atchison, T. & S. F. B. Co. v. English, 38 Kan. 110, 16 Pac. 82; Luke v. Johnnycake, 9 Kan. 511; Davis v. Guarnieri, 45 Ohio St. 470, 4 Am. St. Bep. 548; Montgomery v. Swindler, 32 Ohio St. 224; Hovey v. Cook, 83 Vt. 458. Thus, where the jury find, in an- swer to interrogatories in an action for personal injuries, that plaintiff was not negligent, error in submit- ting the doctrine of comparative neg- ligence, or in telling the jury that, although negligent, plaintiff may re- cover because of the wilfulness of defendant, can do no harm. Louis- ville, N. A. & C. By. Co. v. Wright, 115 Ind. 378, 7 Am. St. Bep. 432. Where the jury return a special verdict, error in the instructions as to the general rules of law applicable to the case is not ground for re- versal. Ward v. Cochran, 18 C. C. A. 1, 71 Fed. 127. 12 — Musselman v. Pratt, 44 Ind. 126. 13 — Bandall v. Parramore, 1 Fla. 409; Breckenridge v. Anderson, 3 J. J. Marsh. (Ky.) 717; Thomas v. Tanner, 6 T. B. Mon. (Ky.) 61; Pritchard v. Myers, 11 Smedes & M. (Miss.) 42. A failure to construe the contract in suit is harmless where the jury properly construe it. Galveston, *H. & S. A. By. Co. v. Johnson, 74 Tex. 256. 14 — The refusal of proper instruc- 912 Instructions to Jtjeies. [§414 to refuse a requested instruction where the jury find as asked by the instruction, 15 or where the jury find that the facts o*n which the instruction was based did not exist. 16 tions is harmless error where the verdict must necessarily have been the same, whether the instructions asked were given or not. Alabama. Southern Hardware & Supply Co. v. Block Bros., 163 Ala. 81. Florida. Robinson v. Hyer, 35 Fla. 544; May v. Gamble, 14 Fla. 467., Georgia. Atlantic & B. R. Co. v. Sumner, J.34 Ga. 673. Illinois. Scott v. Parlin & Oren- dorff Co., 245 111. 460, aff'g 146 111. App. 92; Avery v. Moore, 133 111. 74; Squire Dingee Co. v. McDonald, 61 111. App. 607. Indiana. Musselman v. Pratt, 44 Ind. 126; Rice v. Rice, 6 Ind. 100. Iowa. Olson v. Neal, 63 Iowa 214; Cedar Falls & M. R. Co. v. Rich, 33 Iowa 113. Kentucky. Webb v. Moore, 136 Ky. 708. Missouri. Sullivan v. Jefferson Ave. Ry. Co., 133 Mo. 1, 32 L. R. A. 167; Jenkins v. Clopton, 141 Mo. App. 74. Mississippi. Wiggins v. McGimp- sey, 13 Smedes & M. 532. Nebraska. Ryan v. State Bank, 10 Neb. 524. Texas. City of Houston v. Dupree (Tex. Civ. App.) 129 S. W. 173; Emerson, Talcott & Co. v. Skidmore, 7 Tex. Civ. App. 641. West Virginia. Butcher v. Som- merville, 67 W. Va. 261. United States. Pence v. Langdon, 99 TJ. S. (9 Otto) 578, 25L. Ed. 420; Douglass v. MAllister, 3 Cranch 298, 2 L. Ed. 445. Error is harmless where any other verdict would properly have been set aside. Cedar Palls & M. R. Co. v. Rich, 33 Iowa 113. 15— White v. Chaffin, 32 Ark. 59; Woodward v. Begue, 53 Ind. 176; Munderbach v. Lutz's Adm'r, 14 Serg. & R; (Pa.) 220; Reed v. Walker (Tex. Civ. App.) 130 S. W. 607; Con- rady v. By waters (Tex. Civ. App.) 24 S. W. 961. See also, Johnson v. State (Tex. Cr. App.) 35 S. W. 387. 16 — Alabama. Southern Hardware & Supply Co. v. Block, 163 Ala. 81. Arkansas. Baker v. State, 58 Ark. 513. California. Lowe v. San Francisco & N. W. R. Co., 154 Cal. 573, 98 Pac. 678. Colorado. Mason v. Sieglitz, 22 Colo. 320, 44 Pac. 588. Illinois. Chicago & E. I. R. Co. v. H>es, 33 111. App. 271, aff'd 132 111. 161. Indiana. Kimble v. Seal, 92 Ind. 276; State v. Parish, 83 Ind. 223; National Life Maturity Ins. Co. v. Whitacre, 15 Ind. App. 506. Iowa. Hughes v. Chicago B. & Q. R. Co., 141 Iowa 273, 133 Am. St. Rep. 164; Seekel v. Norman, 78 Iowa 254; Hall v. Ballou, 58 Iowa 585; Clinton Nat. Bank v. Graves, 48 Iowa 228; Martin v. Town of Al- gona, 40 Iowa 390. . Kansas. Branner v. Stormont, 9 Kan. 51. Kentucky. Powell v. Weber-Stair Co., (Ky.) 125 S. W. 255. Maine. Barrett v. City of Bangor, 70 Me. 335; Tainter v. Lombard, 54 Me. 554; Perkins v. Hitchcock, 49 Me. 468. Michigan. Anderson v. Thunder § 415] Cuke of Ereor. 913 § 415. Same — Illustrations — Civil cases. Where the verdict finds all the issues in favor of 'the suc- cessful party, if the issues are such that a finding of either of them in his favor entitles him to the judgment rendered, the judgment will not be reversed for error in the instruc- tions of the court relating exclusively to the other. 17 "Where part of the defendants pleaded limitation to the several tracts claimed by them and the verdict is general and evidently upon the issue attacking the title of plain- tiffs, errors in the charge upon the, subject of limitation would be immaterial. ' ' 18 Where plaintiff, on trial of a traverse to the ground of an attachment, successfully car- ried the burden of proof, a charge that the burden was on defendant was harmless. 19 The error of leaving the construction or effect of a writ- ten instrument to be determined by the jury will not war- rant reversal if a proper construction of the instrument in the light of the other facts determined by the verdict must lead to the same result. 20 In an action on a note, the main issue being as to altera- tion of the date of the note, an erroneous instruction as to the effect of an alteration by a third person will not work a reversal if the jury find that the note was not altered by any one. 21 Where the jury find the contract of defendants to be joint, a charge that the jury might find against one, even if a misdirection, was immaterial, as it cannot in- fluence the verdict. 22 Bay Eiver Boom Co., 57 Mich. 216; 18 — Parker v. Chancellor, 78 Tex. Gallaway v. Burr, 32 Mich. 332, 524. Pennsylvania. Glass v. Ranwolf, 19 — Moore v. Brewer, 94 Ga. 260. 172 Pa. St. 655, 37 Wkly. Notes Cas. 20— Stadden v. Hazzard, 34 Mich. 428. 76; Roberts v. Alexander, 5 Lea Texas. Houston Oil Co. of Texas (Tenn.) 414. v. Kimball, 103 Tex. 94j Walker v. 21— Vickers v. Kennedy (Tex. Civ. Brown, 66 Tex. 556. App.) 34 S. W. 458. Vermont. Good v. Knox, 64 Vt. 22 — Devereux v. Champion Cotton 97. Press Co., 17 S. C. 72. 17 — gites v. Haverstick, 23 Ohio St. 626. BlashfieldVol.I— 58 914 Instructions to Jubies. [§ 415 Where the jury specially find, in an action for personal injurfes; that plaintiff was wholly free from negligence, the submission to the -jury of the exploded doctrine of compara- tive negligence can work no harm. 23 The refusal to give an instruction based upon an oral agreement works no harm, where the jury find that no such agreement had been made. 24 Where the jury specially find that, at the time of an application for a life insurance policy, the applicant was in good health and had never had certain diseases inquired about by the examining phy- sician, a refusal to instruct that if the applicant had such diseases, contrary to representations made by him, he could not recover, is harmless. 25 Error committed in refusing a charge that advice of counsel would be no defense if the criminal prosecution was commenced by defendants to collect their debt is error without prejudice, where the jury, in answer to a special question, expressly find that the criminal prosecution was not commenced for that pur- pose. 26 Error in instructions as to the measure of damages is harmless where the jury do not allow a recovery, 27 or where 23 — Pennsylvania Coal Co. v. Crawford County Com'rs, 13 Kan. Kelly, 156 111. 9, aff'g 54 111. App. 171. 622. Mississippi. Fairfield v. Louisville 24 — Hall v. Ballou, 58 Iowa 585. & N. E. Co., 94 Miss. 887, 136 Am. 25 — National Life Maturity Ins. St. Rep. 611, .19 Ann. Cas. 456. Co. v. Whitaore, 15 Ind. App. 506. Nebraska. Olsen v. Meyer, 46 26 — Gallaway v. Burr, 32 Mich. Neb _ 2 40. 332 - Ohio. Loudenback v. Collins, 4 27 — Alabama. Huson Ice & Ma- Q h j o 2gl South Carolina. Mobley v. Char- chine Works v. Bland & Chambers, 167 Ala. 391. j c & A R ^ Illinois. MeCutcheon v. City of ' . ' ' „,. 1Kn T11 . „oo Devereux v. Champion Cotton Press Chicago, 150 111. App. 232. Iowa. Cooper v. City of Oelwein, ^°-> u B - °- '*• , 145 Iowa 181; White v. Byam, 96 Texas - Temple v. Duran (Tex. Civ. Iowa 166; National Horse Importing App.) 121 S. W. 253; Hill v. Houser, Co. v. Novak, 95 Iowa 596. 51 Tex. Civ. App. 359. Kansas. Wilkes v. Wolback, 30 Washington. Manvell v. Weaver, Kan. 375, 2 Pac. 508; Mcintosh v. 61 Wash. 23, 111 Pac. 890. § 415] Cuke op Eeeoe. 915 the verdict is for the defendant. 28 So, where the verdict shows that the jury were not brought to a consideration of damages, the plaintiff is not prejudiced by the refusal to give an instruction on the measure of damages, 29 and error in an instruction relating only to the right of recov- ery, and not affecting the measure of damages, is harmless where the verdict is in favor of the party objecting. 30 So, error in an instruction which authorizes recovery of a greater sum than is actually due is harmless, where the verdict is only for the sum actually due, or where the plain- tiff remits the excess. 31 Where the court erroneously charges that exemplary damages may be allowed, but the jury do not award exem- plary damages, the error is harmless. 32 The' refusal of a request for an instruction on exemplary damages furnishes no ground of complaint where the jury find only actual damages. 33 An instruction not to allow defendant any- thing overpaid by him is harmless error where the jury find that there was nothing overpaid. 34 The fact that a jury awards a sum under the name of "single damages" does not show that no harm has resulted from an instruc- tion erroneously telling the jury that it is within their power to give treble damages. Jurors may have yielded their claim that the damages should be triple, in consider- Wisconsin. Jones v. Monson, 137 32 — Indiana. Patehell v. Jaqua, 6 Wis. 478, 129 Am. St. Eep. 1082. Ind. App. 70. 28 — Sunman v. Clark, 120 Ind. Kentucky. Chesapeake & O. R. Co. 142; Manning v. Union Transfer Co., v - Conley, 136 Ky. 601. 7 Mackey (D. C.) 214. See Porter Michigan. Durfee v. Newkirk, 83 -.r j. in OJ m Aao Mich. 522. v. Metcalf, 84 Tex. 468. „ n - ,. wjivc, /ik Ohio. Kuchenmeister v. O'Connor, 29 — Montgomery v. Willis, 45 ' Neb, 434; Porter v. Metcalf, 84 Te, ^ ^L^n y ^^ 468 - Coast Line B. Co., 86 S. C. 514. 30— Lasure v. Graniteville Mfg. Texas Taylor; B & H Ry C() y _ Co., 18 S. C. 280. Taylor, 79 Tex. 104, 23 Am. St. Eep. 31— Comerford v. Morrison, 145 316- Freiberg v. Elliott, 8 S. W. 322. 111. App. 615; Saunders v. Flaniken, 33— Texas & P. Ey. Co. v. Watts 77 Tex. 662. See also, Blaisdell v. (Tex.) 18 S. W. 312. Scally, 84 Mich. 149. 34— Eyan v. Begein, 79 Ind. 356. 916 Instructions to Juries. [§ 415 ation of a large sum being awarded as single damages. 35 Misleading or erroneous instructions in an equitable cause constitute no ground for reversal where the finding of the jury is adopted by the court as in accordance with the evidence. 36 § 416. Same — Illustrations — Criminal cases. A refusal to define murder is harmless when the de- fendant is convicted only of manslaughter, 37 and where a defendant is found guilty of fornication, a refusal to give a correct charge as to rape is harmless error. 38 Error in an instruction as to a higher offense is harmless and not a ground for reversal where the defendant is convicted of a lower degree of the offense. 39 So, error in the charge as to a lower degree of the offense than that of which de- fendant is convicted is harmless. 40 Where defendant is convicted under only one count of the indictment, errors in the instructions as to the other counts are harmless. 41 The failure to charge as to another offense contained in a different count is not reversible error. 42 Error in instruct 1 ing that the jury may assess a fine at a greater amount than authorized by law is harmless, where they assess the fine at a less amount than authorized by law. 43 35 — MeLeod v. Ellis, 2 Wash. 117, Tennessee. Wickham v. State, 7 26 Pae. 76. Cold. 525. . 36 — Brandon v. Dawson, 63 Mo. Texas. Rutledge v. State (Tex. Or. App. 359. See also, Richardson v. App.) 33 S. W. 347; Blackwell v. City of Eureka, 110 Cal. 441, 42 Pac. State, 33 Tex. Cr. App. 278. 965; Gray v. Troutman, 158 111. 171. Washington. State v. Phillips, 59 37— Parker v. State, 55 Miss. 414. Wash. 252, 109 Pae. 1047. See also, State v. See, 85 S. C. 101, 40— State v. Dickson, 6 Kan. 209. 137 Am. St. Rep. 869; Cox v. State, 41 — Boswell v. State, 59 Tex. Cr. 60 Tex. Cr. App. 471. App. 161; Tigerina v. State, 35 Tex. 38— Jackson v. State, 91 Wis. 253. Cr. App. 302. 39 — Alabama. Phillips v. State, 42 — Parham v. State, 10 Lea 167 Ala. 75. (Tenn.) 502; Ray v. State, 3 Heisk. Georgia. Tipton v. State, 8 Ga. (Tenn.) 379n. App. 92. 43— Dudriey v. State, 22 Ark. 251. Missouri. State v. Hanson, 231 Mo. See also, Palmer v. State, 168 Ala. 14; State v. Gates, 130 Mo. 351. 124. §417] Cube of Ekkob. 917 § 417. Cure of error in the admission of evidence by in- structions. According to the weight of authority, error in the ad- mission of evidence may be cured by the giving of in- structions withdrawing such evidence from the jury's consideration, 44 or by the giving of instructions which with- 44 — California. People v. Bond, 13 Cal. App. 175, 109 Pae. 150. Colorado. King v. Bea, 13 Colo. 69, 21 Pae. 1084. Indiana. Indianapolis, P. & C. By. Co. v. Bush, 101 Ind. 582; Zehner v. Kepler, 16 Ind. 290. ' Iowa. Stewart v. Colfax Consol. Coal Co., 147 Iowa 548. Massachusetts. Smith v. Whit- man, 6 Allen 562; Hawes v. Gustin, 2 Allen 402. Michigan. Walsh v. Gibson, 159 Mich. 312; Potvin v. West Bay City Shipbuilding Co., 156 Mich. 201; Busch v. Fisher, 89 Mich. 192; Tol- bert v. Burke, 89 Mich. 132; Mitts v. MeMorran, 85 Mich. 94; Blaisdell v. Scally, 84 Mich. 149; Beeman v. Black, 49 Mich. 598.'" Missouri. Durant v. Lexington Coal Min. Co., 97 Mo. 62; Stephens v. Hannibal & St. J. B. Co., 96 Mo. 207, 9 Am. St. Bep. 336n; Griffith v. Hanks, 91 Mo. 109; Davis v. Pev- eler, 65 Mo. 189; Dent v. Springfield Traction Co., 145 Mo. App. 61; Cana- day v. United Eys. Co. of St. Louis, 134 Mo. App. 282. New Hampshire. Hamblett v. Hamblett, 6 N. H. 333. New York. McKnight v. Dunlop, 5 N. Y. 537, 55 Am. Dec. 370; People v. Parish, 4 Denio 153. North Carolina. Coore v. Seaboard Air Line B. Co., 152 N. C. 702; Bridgers v. Dill, 97 N. C. 222. Ohio. Mimms v. State, 16 Ohio 221. Oregon. Swank v. Elwert, 55 Ore. 487, 105 Pae. 901. Pennsylvania. Com. v. Clements, 6 Bin. 208. Rhode Island. State v. Towler, 13 E. I. 665. Tennessee. Links v. State, 13 Lea 701. Texas. Stephenson v. Jackson (Tex. Civ. App.) 128 S. W. 1196; Mis- souri Valley Bridge & Iron Co. v. Ballard, 53 Tex. Civ. App. 110; Jones v. Beus, 5 Tex. Civ. App. 628. Virginia. Washington, A. & Mt. V. E. Co. v. Trimyer, 110 Va. 856. Washington. Puget Sound Iron Co. v. Worthington, 2 Wash. T. 472, 7 Pae. 882. Wisconsin. Beck v. Cole, 16 Wis. 95; Conklin v. Parson, 2 Pin. 264. United States. Pennsylvania Co. v. Boy, 102 U. S. 451, 26 L. Ed. 141; Specht v. Howard, 16 Wall. 564, 21 L. Ed. 348. English. Tullidge v. Wade, 3 Wils. 18. Illustrations: In a suit to recover the value of logs, some of which had been manufactured into lumber, where evidence was received of the value of the lumber and also of the logs, as to which latter value there was no serious dispute, and the jury were instructed that it eould only allow plaintiff the value of the logs, it was held that the admission of the testimony as to the value of the 918 Instructions to Jueies. [§417 draw the issue to which the evidence relates from the jury's consideration. 45 However, if it appears that the verdict has been affected by the erroneous evidence, and that the instruction was without effect in withdrawing the evidence, the error is not cured. 46 According to some decisions, it is presumed that the jury have based their verdict upon legal evidence, 47 and it is also presumed that the jury have followed and obeyed the in- structions of the court. 48 Accordingly, if an instruction is given requiring the jury to disregard the erroneous evi- dence, it will be presumed that such instruction was fol- lowed and that the erroneous testimony is no longer before the jury. 49 So, an instruction withdrawing erroneous evi- dence will be held to cure the error of admitting it, unless it is apparent that prejudice resulted notwithstanding such instruction; 50 and it is only when it is apparent that imma- terial or irrelevant evidence has affected the verdict that lumber was not prejudicial. Busch v. Fisher, 89 Mich. 192. While it is error for the court to admit evidence of the unlawful con- version of property as a set-off, in an action of assumpsit, yet, if it in- structs the jury to reject the set-off, and they find accordingly, the error is cured. Conklin v. Parsons, 2 Pin. (Wis.) 264. Although a wife cannot prove non- access of the husband, and the court causes a question to be asked of her, from the answer to which nonaccess may be inferred, the verdict cannot be disturbed because of the question, where the jury are instructed that they must not consider anything the wife might say as evidence of non- access. Com. v. Shepherd, 6 Bin. (Pa.) 283, 6 Am. Dec. 449. 45— Elliott v. Capital City State Bank, 149 Iowa 309; Smith v. Chi- cago, M. & St. P. E. Co., 26 S. D. 555. See also, Kansas City, M. & O. By. Co. of Texas v. City of Sweet- water, — Tex. Civ. App. — , 131 S. W. 251. 4jg — Sinker v. Diggins, 76 Mich. 557; Detroit & M. B. Co. v. Van Steinburg, 17 Mich. 99; Hamory v. Pennsylvania, M. & S. B. Co., 222 Pa. 631; Sterling v. Sterling, 41 Vt. 80; Castleman v. Griffin, 13 Wis. 602. See also, Boyd v. Beadsboro, reported in State v. Meader, 54 Vt. 654. 47 — Pennsylvania Co. v. Roy, 102 TJ. S. (12 Otto) 451, 26 L. Ed. 141. See also, Bachseits v. Leichtweis, 256 111. 357. 48 — Com. v. Shepherd, 6 Bin. (Pa.) 283, 6 Am. Dec. 449. 49— State v. Meller, 13 R. I. 669. 50 — Deerfield v. Northwood, 10 N. H. 269; Missouri Pac. By. Co. v. Mitchell, 75 Tex. 81; Jones v. Beus, 5 Tex. Civ. App. 628. § 418] Cure of Error. 919 evidence excluded or limited will afford a ground for re- versal. 51 There are a number of decisions, however, which hold that if it is apparent that the verdict was influenced by the admission of erroneous evidence, the judgment ren- dered must be reversed, 52 and the giving of instructions withdrawing the evidence, or requiring the jury to dis- regard it, is ineffectual unless it affirmatively appears that no prejudice resulted from the erroneous evidence. 53 Some decisions also go further, and, contrary to the general rule first stated, hold without qualification that error in the ad- mission of evidence cannot be cured by the giving of in- structions withdrawing or attempting to withdraw such evidence. 54 In one state, this is the rule in criminal cases. 55 These decisions base their reasoning on the ground that the impression created by the erroneous evidence, in the minds of the jury, is not easily removed, and that the court can never be sure if the error is in fact cured. § 418. Request for instructions withdrawing evidence. It is error to refuse a requested instruction requiring the jury to disregard improper evidence which has been erro- neously admitted. The defendant has the right to have the jury instructed to disregard such evidence, 56 provided 51— Jones v. Beus, 5 Tex. Civ. 111. App. 119; State v. Mix, 15 Mo. App. 628. ' 153; Arthur v. Griswold, 55 N. Y. Unless it can be seen that a party 400; Irvine v. Cook, 15 Johns. (N. has been injured by the admission Y.) 239; Penfield v. Carpender, 13 of illegal evidence, a reversal should Johns. (N. Y.) 350. not be had for that cause. Links v. 55 — State v. Kuehner, 93 Mo. 193; State, 13 Lea (Tenn.) 708. State v. Marshall," 36 Mo. 400; State 52— Erben v. Lorillard, 19 N. Y. v. Wolff, 15 Mo. 168; State v. Mix, 299. 15 Mo. 153. But see State v. Sassa- 53 — Coleman v. People, 58 N. Y. man, 214 Mo. 695. 555; State v. Meader, 54 Vt. 131. 56 — Greenup v. Stoker, 2 Gilm. See also, Hodge v. Town of Benning- (111.) 688; State v. Brown, 28 La. ton, 43 Vt. 450; Wood v. Willard, 36 Ann. 279; State v. Owens, 79 Mo. Vt. 82. 619; State v. Cox, 65 Mo. 29; Fass v. 54— City of Chicago v. Wright & Western TJ. Tel. Co., 82 S. C. 461. ' Lawther Oil & Lead Mfg. Co., 14 Compare George v. Norris, 23 Ark. 920 Instructions to Jubies. [§418 that proper objections have been made to the admission of such evidence when offered, 57 and in fact the court may properly give such an instruction of its own motion. 58 Where evidence has been properly received, but its effect has been destroyed by other evidence, a party has not an absolute right to have the evidence first received stricken out. He should request a charge of the court that such evidence be not considered. 59 Where evidence which is material and competent at the time it is received becomes subsequently incompetent and immaterial, and no request is made to the court to instruct the jury to disregard it, it has been held that a failure to give such an instruction affords no ground for reversal. 60 Where depositions are introduced in evidence, the proper practice is to point out the objectionable parts, and request an instruction that the jury disregard such parts. 61 § 419. Objections as a basis of requested instructions to withdraw evidence. A majority of the courts hold that error in the admission of evidence cannot be cured by requesting the court to in- struct the jury to disregard it, where no objection was made to such evidence when offered. 62 There are, how- 130. In this case it was said: "The law. The instructions were properly first and fifth instructions asked the refused." ' court to declare that evidence which 57 — See § 419, post. it had admitted against the objee- 58 — Utter v. Vance, 7 Blackf. tion of the plaintiff was not legal, (Ind.) 514. See also, Haney v. and could not be considered by the Marshall, 9 Md. 194; Rankin v. jury. The court did not err in refus- Thomas, 50 N. G. 435. ing the instructions, — its error was 59 — Gawtry v. Doane, 51 N. Y. 84. in allowing parol evidence to go to 60 — Aitkin's Heirs v. Young, 12 the jury, to construe the bill of sale Pa. St. 15. as a mortgage; but when the evi- 61 — Buster's Ex'r v. Wallace, 4 dence was before the jury, the plain- Hen. & M. (Va.) 82. tiff should have rested his objection 62 — Georgia. Harrison v. Young, to it on his exception to its intro- 9 Ga. 359. duction, — should not have asked the Iowa. Fish v. Chicago, R. I. & P. court to pronounce that not to be Ry. Co., 81 Iowa 280; Becker v. law^ which the court in a former Becker, 45 Iowa 239; State v. Pratt, period of the case ruled to be the 20 Iowa 267. §419] Cube of Eeboe. 921 ever, sohie decisions which apparently take the opposite view, and hold that "an omission to object to testimony is not a concession that it is competent, ' ' and that, if testi- mony is incompetent, the party against whom it is received is entitled to an instruction that it should not be consid- ered, 83 and that a refusal to give an instruction of this nature is reversible error. 64 So, it has been held that where incompetent evidence has been admitted either with or without objection, it is not necessarily to be stricken out on motion, but the remedy of the party is to ask for in- structions to the jury to disregard it. 65 It has also been held that where a certain defense is fairly covered by the answer, although so indefinite that greater certainty might have been required, when the evi- dence to establish such defense has been admitted without objection, it is not proper to direct the jury to disregard such evidence. 66 In one state it has been held in criminal cases that if incompetent evidence goes to the jury without objection at the time by defendant, a request that the court instruct the jury that such evidence be disregarded should be granted. 67 If evidence to which no objection is appar- Missouri. Maxwell v. Hannibal If the party had an opportunity & St. J. R. Co., 85 Mo. 106. to interpose an objection, he cannot Mississippi. Edge v. Keith, 13 take the chances that the testimony Smedes & M. 295. 'will be favorable to him, and, when Texas. Missouri Pac. B. Co. v. it turns out otherwise, raise his ob- Mitchell, 75 Tex. 77; Ann Berta jection. Maxwell v. Hannibal & St. Lodge v. Leverton, 42 Tex. 18; Stark J. Ey. Co., 8.5 Mo. 106. v. Coe (Tex. Civ. App.) 134 S. W. 63— Hamilton v. New Tork Cent. 373. E. Co., 51 N. Y. 101.' Objection cannot regularly or 64— rSperry v. Helman, 20 N. T. properly be raised in this manner, Civ. Proc. 226; Bank of United nor at this stage of the proceedings. States v. Johnson, 3 Granch, C. C. State v. Pratt, 20 Iowa 269. 228, Fed. Cas. No. 919. It .would be unjust for the court 65 — Marks v. King, 64 N. T. 628. to thus exclude evidence at a stage 66 — Liverpool & L. Ins. Co. v. of the trial when it is too late for Gunther, 116 U. S. 114, 29 L. Ed. 576. the party to adduce other evidence 67 — State v. Owens, 79 Mo. 619; which might warrant its admission. State v. Cox, 65 Mo. 29. Ann Berta Lodge v. Leverton, 42 Tex. 18. 922 Instructions to Jueies. [§ 419 ent at the time of its admission is* subsequently shown to be incompetent, the rule that an objection must be taken at the time does not apply. 68 § 420. Sufficiency of instructions withdrawing- evidence. Error in the admission of improper evidence is not usu- ally cured by the giving of an instruction impliedly with- drawing such evidence, 09 but the better practice is to with- draw such evidence in express terms. 70 In another section it was noted that some courts hold, without qualification, that an instruction withdrawing, or attempting to with- draw, evidence erroneously admitted, does not cure the error in admitting it, on the ground that the impression created in the minds of the jury by the admission of the improper evidence' is not easily removed or obliterated, and the court can never be sure as to whether the jury have been entirely successful in shutting out from their mental vision the objectionable testimony. 71 The same rea- soning applies to the sufficiency of instructions withdraw- ing such evidence. It is apparent that an express direction is necessary. And it was well said in one decision : "It is difficult to tell what effect evidence once admitted may have upon the triors of fact; but the impression made by hearing what the court has declared to be competent testi- mony can hardly be removed by anything short of a fiat direction that it must be disregarded." 72 If evidence is improperly admitted, but afterwards with- 68 — State v. Lavin, 80 Iowa 559. Ohio. Henkle v. McClure, 32 Ohio 69— Pavey v. Birch, 3 Mo. 314. 202. 70 — Georgia. Pelhaih Mfg. Co. v. Pennsylvania. Keil v. Chartiers Powell, 6 Ga. App. 308. Valley Gas Co., 131 Pa. St. 466, 17 Michigan. Seripps v. Reilly, 35 Am. St. Rep. 823. Mich. 393. Wisconsin. Castleman v. Griffin, Missouri. Durant v. Lexington 13 Wis. 602. See also, Wright v. Coal Min. Co., 97 Mo. 62; Griffith v. Gillespie, 43 Mo. App. 244. Hanks, 9i Mo. 109; Pavey v. Burch, 71 — See § 417, ante. 3 Mo. 314. 72— Henkle v. McClure, 32 Ohio New York. Galino v. Fleischmann St. 202. Realty & Construction Co., 130 App. Div. (N. Y.) 605. § 421] Cube of Ebbob. 923 drawn by express direction, it is held that this will be suf- ficient without again directing the jury not to consider it in the general charge. 73 So, if, after the admission of illegal testimony, the judge, of his own motion, excludes it and informs the jury that the testimony has nothing to do with the case, the failure to again inform the jury that it was excluded on a subsequent motion made to strike out the testimony is immaterial. 74 It has also been held that where "evidence properly to be considered under the prayer for exemplary damages' was introduced without ob- jection, and afterwards the court charged the jury, ex- cluding from their consideration the question of exemplary damages, the failure of the court, of its own accord, to in- struct the jury not to consider the evidence thus admitted, is not ground for reversal. " 75 §421. Instructions requiring jury to disregard evidence offered or excluded. Excluded evidence will not usually be considered by a jury in deciding as to the verdict, and accordingly it has been held proper to refuse instructions requiring a dis- regard of such excluded evidence. 76 However, some deci- sions hold that the court may properly warn the jury against the consideration of such evidence ; 77 but it is cer- tainly under no obligation to do so, especially where no in- struction on the" subject is requested. 78 If the court ex- cludes evidence at the time it is offered on objection raised, and the party objecting is apprehensive that the offered testimony may have affected the jury, he should request the court to instruct the jury to disregard such testimony, and, failing to so* request, cannot assign as error the failure of the court to give the instruction. 79 73 — Brown v. Matthews, 79 6a. 1; Rapids & I. E. Co. v. Horn, 41 Ind. Martin v. McCray, 171 Pa. St. 575. 479. 74 — Rollins v. O 'Parrel, 77 Tex. 77 — McCoy v. Bateman, 8 Nev. 90. 126. 75 — Brown v. Bacon, 63 Tex. 595. 78--RusselI v. Nail, 79 Tex. 664. 76 — Pfaffenback v. Lake Shore & 79 — Russell v. Nail, 79 Tex. 664. M. S. Ry. Co., 142 Ind. 246; Grand CHAPTER XXXIV. Exceptions and Objections to Instructions and Review on Appeal. § 422. Necessity of objections to instructions in trial court. § 423. Necessity of exceptions to giving or refusal of instructions. § 424. Sufficiency of exceptions. § 425. Necessity that exceptions be specific. § 426. Necessity that exceptions be taken separately to instructions or parts of instructions. § 427. Time of taking exceptions. § 428. Necessity of bill of exceptions. § 429. Sufficiency of record on appeal in general. § 430. Preserving instructions in record. § 431. Preserving evidence in record. § 432. Presumption against error on appeal. § 433. Presumption of prejudice on appeal. § 434. Invited error. § 435. Instructions given or refused on party 's own motion. § 436. Instructions given by consent. § 437. Harmless and prejudicial error. § 4,38. Error harmless in view of evidence. § 439. Error in appellant 's favor. \ § 422. Necessity of objections to instructions in trial court. In order to be available for review, error in the giving or refusal of instructions should be called to the attention of the trial judge in such court, when the error is com- mitted. It is a well settled rule that errors predicated upon instructions cannot be considered when raised for the first time on appeal. 1 The reasons advanced in favor of this 1 — Arkansas. Burgess v. State, 773; Dawson v. Goston, 18 Colo. 108 Ark. 508; Clardy v. State, 96 493, 33 Pac. 189; Denver & E. G. Ark. 52. E. Co. v. Eyan, 17 Colo. 98, 28 , California. Williams v. Southern Pac. 79; Wray v. Carpenter, 16 Colo. Pac. E. Co., 110 Cal. 457, 42 Pac ; 974. '271, 25 Am. St. Eep. 265, 27 Pac. Colorado. Portland Gold Min. Co. 248; McFeters v. Pierson, 15 Colo, v. O'Hara, 45 Colo. 416, 101 Pac. 201, 22 Am. St. Eep. 388, 24 Pac. (924) § 422] Exceptions and Objections — Eeview. 925 rule are that the trial court must be given an opportunity to correct its own errors, frequently the result of inadver- 1076; Brewster v. Crossland, 2 Colo. App. 446, 31 Pac. 236. Florida. Jones v. Greeley, 25 Ma. 629. Georgia. Chattahoochee Briek Co. v. Sullivan, 86 Ga. 50; Bicks v. ■ State, 16 Ga. 600; Ellenberg v. Southern R. Co., 7 Ga. App. 388. Illinois. McDaneld v. Logi, 143 111. 487; Peck v. Boggess, 1 Scam. 281; People v. Klimek, 184 111. App. 59; Napierkowski v. Chicago Title & Trust Co., 181 111. App. 308; Bicks Sheep Co. v. Oregon Short Line B. Co., 180 111. App. 220; Hartwig v. Knapwurst, 178 111. App. 409; Atchi- son, T. & S. F. E. Co. v. Feehan, 47 111. App. 66; Lake Erie & W. B. Co. v. Bosenberg, 31 111. App. 47. Indiana. Hindman v. Troxell, 15 Ind. 123; State v. Manly, 15 Ind. 8; Bidge v. Sunman, 14 Ind. 540; Flem- ing v. Potter, 14 Ind. 486; Little v. Norris, 14 Ind. 375; Daily v. Nutt- man, 14 Ind. 339; Lomax v. Strange, 14 Ind. 21; Carpenter v. O'Neal, 14 Ind. 19; Boxley v. Carney, 14 Ind. 17; Baxter v. Baxter, 46 Ind. App. 514. Iowa. State v. Callahan, 96 Iowa 304; Peet v. Chicago, M. & St. P. By. Co., 88 Iowa 520; Bellows v. Litchfield, 83 Iowa 36; Norris v. Kipp, 74 Iowa 444; Seekel v. Nor- man, 71 Iowa 264; Kirk v. Litterst, 71 Iowa 71. Kansas. Colwell v. Parker, 81 Kan. 295, 105 Pae. 524; Kansas Farmers' Fire Ins. Co. v. Hawley, 46 Kan. 746, 27 Pac. 176; State v. Pro- basco, 46 Kan. 310, 26 Pac. 749; Con- nor v. Wilkie, 1 Kan. App. 492, 41 Pac. 71. Kentucky. Jeffries v. Com., 9 Ky. L. Bep. 875; Lanham v. Com., 3 Bush 528. Louisiana. State v. Sheard, 35 La. Ann. 543; Stewart v. Harper, 16 La. Ann. 181. Maine. Pope v. Machias Water Power & Mill Co., 52 Me. 535. Maryland. Franklin v. Claflin, 49 Md. 24; Newman v. McComas, 43 Md. 70; Worthington v. Tormey, 34 Md. 182. Massachusetts. Burr v. Joy, 151 Mass. 295; Bawson v. Plaisted, 151 Mass. 71. Michigan. Middlebrook v. Slocum, 152 Mieh. 286; People v. Caldwell, 107 Mich. 374; People v. Baher, 92 Mich. 165, 31 Am. St. Bep. 575; Fraser v. Haggerty, 86 Mich. 521. Minnesota. Minneapolis, St. P., B. & D. Elec. Traction Co. v. Enggren, 111 Minn. 373; Stoakes v. Larson, 108 Minn. 234; Lawrence v. Bucklen, 45 Minn. 195; Shatto v. Abernethy, 35 Minn. 538; State v. Brin, 30 Minn. 522; Evans v. St. Paul & S. C. E. Co., 30 Minn. 489. Mississippi. Middleton v. State, 97 Miss. 278. Missouri. Green v. Terminal B. Ass'n of St. Louis, 211 Mo. 18; State v. Bayne, 88 Mo. 604; Carlisle' iv. Keokuk Northern Line Packet Co., 82 Mo. 40; Lohart v. Buchanan, 50 Mo. 201; Walsh v. Allen, 50 Mo, 181; Welch v. Kansas City Midland Coal & Mining Co., 151 Mo. App. 438; Connelly v. Shamrock Benev. So- ciety, 43 Mo. App. 283; Eitzenger v. .Hart, 43 Mo. App. 183; Lafayette Mut. Bldg. Ass'n v. Kleinhoffer, 40 Mo. App. 388; Wheeler v. Metropoli- tan Mfg. Co., 23 Mo. App. 190; Naughton v. Stagg, 4 Mo. App. 271. 926 Instructions to Jubies. [§422 tence, and that in this manner the delay and expense of an appeal can be avoided; 2 and that parties should be pre- vented from speculating on the chance or opportunity of securing, a favorable verdict "in spite of error, when the verdict and judgment are subject to reversal if unfavor- able. 3 The general rule thus stated has been illustrated in a vast number of cases. Thus, a defect in the form of an instruc- tion, in that its language might have been couched in plainer terms, should be met by a specific objection, 4 and Montana. Frederick v. Hale, 42 Mont. 153, 112 Pac. 70; Yergy v. Helena Light & Railway Co., 39 Mont. 213, 18 Ann. Cas. 1201, 102 Pac. 310; Gum v. Murray, 6 Mont. 10, 9 Pac. 447. Nebraska. Downing v. Glenn, 26 Neb. 323; Omaha, N. & B. H. R. Co. v. O'Donnell, 22 Neb. 475; Schreck- engast v. Ealy, 16 Neb. 5-10. New Jersey. Murphy v. Borough of Atlantic Highlands, 77 N. J. L. 452. New Mexico. Territory v. O'Don- nell, 4 N. M. 196, 12 Pac. 743. New York. Broyer v. Ritter, 13 N. Y. Supp. 574. North Carolina. McParland v. Southern Improvement Co., 107 N. C. 368; Lytle v. Lytle, 94 N. C. 522; Ray v. Lipscomb, 48 N. C. 185. Oklahoma. Pinch v. Brown, 27 Okla. 217, 111 Pac. 391; Carter v. Missouri Mining & Lumber Co., 6 Okla. 11, 41 Pac. 356. Pennsylvania. Guemple v. Phila- delphia Rapid Transit Co., 224 Pa. 327! South Carolina. Fleming v. Flem- ing, 33 S. C. 505, 26 Am. St. Rep. 694. Tennessee. National Hosiery & Yarn Co. v. Napper, 124 Term. 155; Knoxville Iron Co. v. Dobson, 15 Lea 409; Knoxville v. Bell, 12 Lea 157; East Tennessee, V. & G. R. Co. v. Toppins, 10 Lea 63; Malone v. Sea- right, 8 Lea 95; Hayes v. Cheatham, 6 Lea 9; Hatton v. Stewart, 2 Lea 236. Texas. Hollingsworth v. Hols- housen, 17 Tex. 41; Thatcher v. Mills, 14 Tex. 13, 65 Am. Dee. 95; , Leeper v. State, 29 Tex. App. 63; Hill v. State, 22 Tex. App. 579; Cook v. State, 22 Tex. App. 511; Haynes v. State, 2 Tex. App. 84; Houston & T. C. R. Co. v. Lemair, 55 Tex. Civ. App. 237; Yoakum v. Mettasch (Tex. Civ. App.) 26 S. W. 129; Hinman v. State, 59 Tex. Cr. App. 29; Ecker- mann v. State, 57 Tex. Cr. App. 287. Washington. Kenway v. Hoffman, 51 Wash. 105, 98 Pac. 98. Wisconsin. Tomlinson v. Wallace, 16 Wis. 224; Bogert v. Phelps, 14 Wis. 88; Graves v. State, 12 Wis. 591. See also, eases cited in previous note. 2 — State v. Fenlason, 78 Me. 495. 3 — State v. Beaird, <34 La. Ann. 104. 4 — Dierks Lumber & Coal Co. v. Coffman, 96 Ark. 505. In an action for the death of an §422] Exceptions and Objections — Beview. 927 objections to instructions as being misleading, 5 ambiguous, 6 contradictory, 7 or too general 8 cannot be considered wben raised for the first time on appeal. And error in failing to define terms used in instructions will be deemed waived or abandoned if not called to the attention of the trial court. 9 The rule also applies when it is contended that the instruc- tions state the law erroneously, 10 or inadequately; " or that the instructions are not warranted by the issues in the case, 12 or state the issues erroneously; 13 or when it is con- tended that issues of law are submitted, 14 that the province of the jury is invaded, 15 that the evidence does not warrant an instruction, 16 or that facts are assumed to be uncontro- verted which are in fact controverted. 17 So, error in the employee who was killed by a switch* engine, an instruction which was faulty in that negligence and con- tributory negligence was not de- fined could not be objected to on appeal when not excepted to on mo- tion for a new trial. Torkelson v. Minneapolis & St. L. E. Co., 117 Minn. 73. 5— Pellum v. State, 89 Ala. 28. 6 — People v. Olsen, 80 Cal. 122, 22 Pac. 125; Holm v. Sandberg, 32 Minn. 427; Box v. Kelso, 5 Wash. 360, 31 Pac. 973. 7 — Williams v. Southern Pac. E. Co., 110 Cal. 457, 42 Pac. 974; Sierra Union Water & Mining Co. v. Baker, 70 Cal. 572, 8 Pac. 305, 11 Pac. 654. 8 — Hutchinson v. Dearing, 20 Ala. 798; People v. Olsen, 80 Cal. 122, 22 Pac. 125; Eogers v. Wallace, 10 Ore. 387. 9— People v. Flynn, 73 Cal. 511, 15 Pac. 102; Johnson v. Missouri Pac. By. Co., 96 Mo. 340, 9 Am. St. Bep. 351; Texas & P. By. Co. v. O'Donnell, 58 Tex. 27; Cogswell v. West Street & N. E. Elec. By. Co., 5 Wash. 46, 31 Pac. 411. 10 — Bourke v. Van Keuren, 20 Colo. 95, 36 Pac. 882; Bergh v. Sloan, 53 Minn. 116; Williamson v. State, 30 Tex. App. 330. 11 — Goldhammer v. Dyer, 7 Colo. App. 29, 42 Pac. 177; Davis v. Boosevelt, 53 Tex. 305; Box v. Kelso, 5 Wash. 360, 31 Pac. 973; Chesapeake Transit Co. v. Mott, 95 C. C. A. 41, 169 Fed. 543. 12— Shaw v. New York & N. E. E. Co., 150 Mass. 182. Contra. Where an instruction sub- mits an issue not raised by the pleadings, the error is fundamental and can be urged on appeal without objection having been raised in the trial court. Cooper & Jones v. Hall, — Tex. Civ. App. — , 168 S. W. 465. 13 — Milmo v. Adams, 79 Tex. 526. 14 — Stansbury v. Fogle, 37 Md. 369. 15— Atchison, T. & S. F. B. Co. V. Worley (Tex. Civ. App.), 25 S. W. 478. 16 — Newman v. McComas, 43 Md. 70. 17— State v. Fenlason, 78 Me. 495. 928. Instructions to Jtjbies. * [§422 statement of the evidence cannot be raised for the first time on appeal. 18 / An objection that the writing of two instructions on the same sheet is error, 19 that the court failed to number and sign the instructions, 20 that written communications were sent to the jury room, 21 that a written instruction was orally modified, 22 or that the word ' ' given ' ' was not written on the margin of instructions given to the jury, 23 should be called to the attention of the court below, to be avail- able on appeal. In this connection a distinction must be observed between the giving of erroneous instructions and the failure to give correct and adequate instructions. In the former case the objection is sufficiently called to the attention of the trial court by a single objection and exception, and it is not necessary to request and submit a correct instruction to be given in place of the erroneous one. 24 But in the case of a mere failure to give correct instructions covering the case, the error is not available on appeal, in the absence of a request by the appellant for a proper instruction. 25 Thus 18 — Eumph v. Hiott, 35 S. G. 444; of authorities op the necessity of re- State v. Davis, 27 S. C. 609; Muetze questing instructions, see eh. XV, v. Tuteur, 77 Wis. 236, 20 Am. St. ante, "Bequests for Instructions." Eep. 115, 9 L. E. A. 86. Excepting to instructions given 19 — Davenport v. Cummings, 15 will not raise the objection that they Iowa 219. do not fully state the law on all the 20 — Moffatt v. Tenney, 17 Colo. issues. Additional instructions cov- 189, 30 Pac. 348. ering the omitted points should be 21— Thorp v. Eiley, 57 N. Y. asked, Adams v. Stringer, 78 Ind. Super. Ct. 589; Boss v. Northern 175; Jones v. Hathaway, 77 Ind. 14; Pac. E. Co., 2 N. D. 128, 33 Am. St. Davis v. Eoosevelt, 53 Tex. 305. Eep. 756n. If a party desires more definite 22 — Louisville & N. B. Co. v. Hall, and comprehensive instructions upon 91 Ala. 112, 24 Am. St. Bep. 863. a point, it is his duty to prepare and See also, Baxter v. Baxter, 46 Ind. submit instructions, which meet his App. 514. desires, to the trial court. Eichel v. 23— Knight v. Chicago, E. I. & P. Senhenn, 2 Ind. App. 208. Ey. Co., 81 Iowa 310. A general exception that all the 24 — Allis v. Leonard, 58 N. T. 288. issues are, not covered by a charge 25 — Mead v. State, 53 N. J. L. 601. that a certain issue is the only issue For a full discussion and collection in the case is insufficient, in the ab- 422] Exceptions and Objections — Review. 929 a mere exception to the charge as given is insufficient to call the attention of the trial court to its failure to define the meaning of terms used therein. 26 So a general excep- tion to the whole charge raises no question as, to the omission of a proper instruction, or the want of modifica- tion of one given, 27 or as to the sufficiency or explicitness of those given. The necessary supplementary instructions must be asked. 28 As has been seen elsewhere, either party has a right, upon request, to a charge upon any material point in the case; but in the absence of any request the points to be covered by the charge are discretionary with the court, and in the absence of a request a mere failure to charge upon any point is not error. 29 A request to charge must specific- ally call to the attention of the court the point sought to be made, in order to make its refusal available on appeal. 30 sence of any request for further in- structions. Newton v. Whitney, 77 Wis. 515. 26— Texas & P. Ry. Co. v. O'Don- nell, 58 Tex. 27. In People v. Flynn, 73 Cal. 511, 15 Pac. 102, the failure to define the term "reasonable doubt," and in Johnson v. Missouri Pac. By. Co., 96 Mo. 340, 9 Am. St. Rep. 351, the failure to define the meaning of "reasonable care and diligence," was held not to be error, in the absence of a request for a definition. 27 — Wrighton v. Butler, — Tex. Civ. App. — , 128 S. W. 472; Kellogg . v. Chicago & N. W. Ry. Co., 26 Wis. 223. "Where a charge to the jury is susceptible of two constructions, — the one warranted by the case, the other erroneous, — a party 'cannot take advantage of his exception, without presenting the modification necessary to free the charge from ambiguity." Springsteed' v. Law- Blashfield Vol. 1—59 ( son, 14 Abb. Pr. (N. Y.) 328, 23 How. Pr. (N. Y.) 302. 28 — Adams v. Stringer, 78 Ind. 175; Jones v. Hathaway, 77 Ind. 14. "The appellate court will not re- verse on account of a charge which asserts a correct legal proposition, although it may be objectionable from its generality. It is the duty of the party, in such case, to ask more specific and definite instruc- tions." Hutchinson v. Dearing, 20 Ala. 798. A defendant cannot complain that an instruction was not suffi- ciently certain and specific, when the attention of the court below was called to it, and no more specific in- struction was requested. People v. Olsen, 80 Cal. 122, 22 Pac. 125. 29— Mead v. State, 53 N. J. L. 601. And see ch. XV, ante, ' ' Requests for Instructions. ' ' 30 — McDonald v. Johnson, 46 N. Y. St. Rep. 838. See also, Staser v. Hogan, 120 Ind. 225. 930 Instructions to Juries. [§423 § 423. Necessity of exceptions to giving or refusal of in- structions. On the trial of a case, when an error is committed, the usual practice is to call the attention of the court to the error by interposing a proper objection, and if the court fails to correct such error, an exception should be noted. This rale applies to error in the giving or refusing of in- structions. And it is almost universally held that such exception must be saved, in order to authorize a review of the action of the trial court either when an erroneous in- struction is given 31 or when an instruction offered by one 31 — Alabama. Mobile Electric Co. v. Sanges, 169 Ala. 341, Ann. Cas. 1912 B 461n. Arkansas. American Ins. Co. v. Haynie, 91 Ark. 43; Frauenthal v. Bridgeman, 50 Ark. 348. California. Williams v. Southern Pae. R. Co., 110 Cal. 457, 42 Pac. 974; Merguire v. O'Donnell, 103 Cal. 50, 36 Pac. 1033; Sharp v. Hoffman, 79 Cal. 404, 21 Pae. 846; Carpenter v? Ewing, 76 Cal. 487, 18 Pac. 432; Sierra Union Water & Mining Co. v. Baker, 70 Cal. 572, 8 Pac. 305, 11 Pae. 654; Clark v. His Creditors, 57 Cal. 639; Chester v. Bower, 55 Cal. 46; Russell v. Dennison, 45 Cal. 337; Lightner v. Menzel, 35 Cal. 452; Holverstpt v. Bugby, 13 Cal. 43. Colorado. Moffatt v. Tenney, 17 Colo. 189, 30 Pae. 348; Wray v. Car- penter, 16 Colo. 271, 25 Am. St. Rep. 265, 27 Pac. 248; Gilpin v. Gilpin, 12 Colo. 504, 21 Pac. 612; Price v. Buchanan, 12 Colo. 366, 21 Pac. 144; Gibbs v. Wall, 10 Colo. 153, 14 Pac. 216; Patrick Red Sandstone Co. v. Skoman, 1 Colo. App. 323, 29 Pac. 21. Florida. McSwain v. Howell, 29 Fla. 248; Phillips v. State, 28 Fla. 77; White v. State, 26 Fla. 602; Jacksonville, T. & K. W. Ry. Co. v. Hunter, 26 Fla. 308; Jones v. Gree- ley, 25 Fla. 629; Emerson v. Ross' Ex'x, 17 Fla. 122. Georgia. Nashville, C. & St. L. Ry. Co. v. Peavler, 134 Ga. 618. Idaho. State v. Harris, 18 Idaho 620, 111 Pac. 406. Illinois. West Chicago St. R. Co. v. Martin, 154 111. 523; Willard v. Petitt, 153 111. 663; East St. Louis Elec. Ry. Co. v. Stout, 150 111. 9; England v. Vandermark, 147 111. 76; Indianapolis, B. & W. Ry. Co. v. Rhodes, 76 111. 285; Emory v. Addis, 71 111. 273; Toledo, P. &. W. Ry. Co. v. Miller, 55 111. 448; McClurkin v. Ewing, 42 111. 283; Gulliver v. Adams Exp. Co., 38 111. 503; Sedgwick v. Phillips, 22 111. 183; Buckmaster v. Cool, 12 111. 74; Phillips v. Abbott, 52 111. App. 328. Indiana. Lowell v. Gathright, 97 Ind. 313; Coffeen v. McCord, 83 Ind. 593; Indianapolis & M. Rapid Tran- sit Co. v. Walsh, 45 Ind. App. 42; City of Evansville v. Thacker, 2 Ind. App. 370. Iowa. Jamison & Smyth v. Ranck, 150 Iowa 5; State v. Finley, 147 Iowa 563; Leach v. Hill, 97 Iowa 81; Dean v. Zenor, 96 Iowa 752; State v. Black, 89 Iowa 737; Stan- § 423] Exceptions and Objections — Review. 931 of the parties and requested to be given is erroneously hope v. Swafford, 80 Iowa 45; Lewis v. Lewis, 75 Iowa 669; Duncombe v. Powers, 75 Iowa 185; Gray v. Chi- cago, M. & St. P. Ry. Co., 75 Iowa 100; Norris v. Kipp, 74 Iowa 444; Paddleford v. Cook, 74 Iowa 433; Arneson v. Thorstad, 72 Iowa 145; Kirk v. Litterst, 71 Iowa 71; Wilcox v. McCune, 21 Iowa 294; May v. Wilson, 21 Iowa 79; Morse v. Close, 11 Iowa 93. Kansas. Werner v. Jewett, 54 Kan. 530, 38 Pac. 793; Russell v. Bradley, 47 Kan. 438, 28 Pac. 176; Kansas Farmers' Fire Ins. Co. v. Hawley, 46 Kan. 746, 27 Pac. 176. Kentucky. Jackson v. Com., 12 Ky. L. Rep. 575. Maine. Sanford v. Kimball, 106 Me. 355, 138 Am. St. Rep. 345; Du- gan v. Thomas, 79 Me. 221. Maryland. Norfolk & W. R. Co. v. Hoover, 79 Md. 253, 47 Am. St. Rep. 392. Massachusetts. Monjeau v. Met- ropolitan Life Ins. Co., 208 Mass. 1, 28 L. R. A. (N. S.) 200n; McCart v. Squire, 150 Mass. 484. Michigan. MeKinnon v. Atkins, 60 Mich. 418. Minnesota. Matteson v. United States & Canada Land Co., 112 Minn. 190; Stoakes v. Larson, 108 Minn. 234; Anderson v. St. Croix Lumber Co., 47 Minn. 24; Smith v. Bean, 46 Minn. 138; Lawrence v. Bucklen, 45 Minn. 195; State v. Hair, 37 Minn. 351; Mackey v. Fisher, 36 Minn. 348; Spencer v. St. Paul & S. C. R. Co., 22 Minn. 29. Mississippi. Georgia Pac. Ry. Co. v. West, 66 Miss. 310; Smokey v. Johnson (Miss.), 4 So. 788; Bour- land v. Board Sup'rs Itawamba Co., 60 Miss. 1001; Fisher v. Fisher, 43 Miss. 212. Missouri. State v. Hilsabeck, 132 Mo. 348; State v. Pollard, 132 Mo. 288; State v. Paxton, 126 Mo. 500; State v. Ke-inade, 121 Mo. 405; State v. Cantlin, 118 Mo. 100; State v. Patrick, 107 Mo. 147; Haniford v. City of Kansas, 103 Mo. 172; State v. Griffin, 98 Mo. 672; Union Loan, Storage & Mercantile Co. v. Farb- stein, 148 Mo. App. 216; Shannon v. Hannibal & St. J. Ry. Co., 54 Mo. App. 223; Lefkow v. Allred, 54 Mo. . App. 141 ; McDonald v. Cobb, 44 Mo. App. 167; Wright v. Gillespie, 43 Mo. App. 244; Ritzenger v. Hart, 43 Mo. App. 183; Morgan v. Rice, 35 Mo. App. 591. Montana. Yergy v. Helena Light & Railway Co., 39 Mont. 213, 18 Ann. Cas. 1201, 102 Pac. 310; Terri- tory v. Hart, 7 Mont. 489, 17 Pac. 718; Woods v. Berry, 7 Mont. 195, 14 Pac. 758; Kelley v. Cable Co., 7 Mont. 70, 14 Pac. 633; McKinney v. Powers, 2 Mont. 466; Davis v. Ger- maine, 1 Mont. 210. Nebraska. Walters v. Village of Exeter, 87 Neb. 125; City of Kear- ney v. Smith, 47 Neb. 408; Herzog v. Campbell, 47 Neb. 370; Romberg v. Hediger, 47 Neb. 201; American Building & Loan Ass'n v. Mordock, 39 Neb. 413; Richardson & Boynton Co. v. Winter, 38 Neb. 288. Nevada. Lobdell v. Hall, 3 Nev. 507. New Jersey. Packard v. Bergen Neck Ry. Co., 54 N. J. L. 553. New Mexico. Territory v. O 'Don- nell, 4 N. M. (Gild.) 196, 12 ,Pac. 743. New York. Wheeler v. Sweet, 137 N. Y. 435; People v. Buddensieck, 103 N. Y. 487, 57 Am. Rep. 766. 932 Instructions to Jtjbies. [§ 423 refused. 32 Thus it has been held that a failure to except North Carolina. Eiley & Co. v. W. T. Sears & Co., 151 N. C. 187; Chemical Co. of Canton v. Johnson, 101 N. C. 223; Ware v. Nesbit, 94 N. C. 664; "White v. Clark, 82 N. C. 6. North Dakota. Paulsen v. Modern Woodmen of America, 21 N. D. 235. Ohio. Everett v. Sumner, 32 Ohio St. 562; Berry v. State, 31 Ohio St. 219, 27 Am. Rep,. 506; Adams v. State, 25 Ohio St. 584; Kline v. Wynne, 10 Ohio 223. Oklahoma. Gann v. Ball, 26 Okla. 26, 110 Pac. 1067; Berry v. Smith, & Okla. 345, 35 Pac. 576. Oregon. E. H. Moorehouse & Co. v. Weister Co., 55 Ore. 126, 108 Pac. 121, 107 Pac. 470, 95 Pac. 497; Kear- ney v. Snodgrass, 12 Ore. 311, 7 Pac. 309. South Carolina. McPherson v. McPherson, 21 S. C. 267; Sullivan v. Sullivan, 20 S. C. 511. South Dakota. Lawver v. Globe Mut. Ins. Co., 25 S. D. 549. Texas. Hilcher v. State, 60 Tex. Cr. App. 180; Tear v. State, 60 Tex. Cr. App. 155. (Applying rule to mis- demeanor cases.) Washington. Staats v. Pioneer Ins. Ass'n, 55 Wash. 51, 104 Pac. 185; State v. Williams, 13 Wash. 335, 43 Pac. 15; Seattle & M. By. Co. v. Gilchrist, 4 Wash. St. 509, 30 Pac. 738; Johnson v. Ta- coma Cedar Lumber Co., 3 Wash. St. 722, 29 Pac. 451; Cunningham v. Seattle Elec. Railway & Power Co., 3 Wash. St. 471, 28 Pac. 745; Smith v. United States, 1 Wash. T. 262; Brown v. Forest, 1 Wash. T. 201. Wisconsin. Pfister v. Milwaukee Free Press Co., 139 Wis. 627; Haw- ley v. Harran, 79 Wis. 379; Mane- gold v. Grange, 70 Wis. 575; Tomlin- son v. Wallace, 16 Wis. 224; Bogert v. Phelps, 14 Wis. 88. United States. Herencia v. Guz man, 219 U. S. 44, 55 L. Ed. 81 Tucker v. United States, 151 U. S, 164, 38 L. Ed. 112; Hedden v, Iselin, 142 U. S. 676, 35 L. Ed H55; Gibbs v. Consolidated Gas Co. of Baltimore, 130 U. S. 396, 32 L. Ed. 979; Stewart v. Wyoming Cattle Ranch Co., 128 U. S. 383, 32 L. Ed. 439; Hanna v. Maas, 122 U. S. 24, 30 L. Ed. 1117; Little Rock Granite Co. v. Dallas County, 13 C. C. A. 620, 66 Fed. 522; Cohen v. West Chicago St. Ry. Co., 9 C. C. A. 223, 60 Fed. 698; Sutherland v. Round, 6 C. C. A. 428, 57 Fed. 467; Colorado Cent. Consol. Min. Co. v. Turck, 4 C. C. A. 313, 54 Fed. 262. 32— California. People v. Nor- they, 77 Cal. 618, 19 Pac. 865, 20 Pac. 129; Leahy v. Southern Pac. R. Co., 65 Cal. 150, 3 Pac. 622. Illinois. East St. Louis Elec. Ry. Co. v. Stout, 150 111. 9; Burns v. People, 126 111. 282; Krug v. Ward, 77 111. 603; McPherson v. Hall, 44 111. 264; Burkett v. Bond, 12 111. 87; Phillips v. Abbott, 52 111. App. 328. Indiana. Horner v. Hoadley, 97 Ind. 600; Stewart v. Murray, 92 Ind. 543, 47 Am. Rep. 167. Iowa. State v. Brewer, 70 Iowa 384. Kansas. Keeling v. Kuhn, 19 Kan. 441. Massachusetts. Bonino v. Cale- donio, 144 Mass. 299. Minnesota. Beardmore v. Barton, 108 Minn. 28. Montana. Yergy v. Helena Light § 423] Exceptions and Objections — Review. 933 to an omission to number instructions waives the error, 83 and an omission to mark instructions "given" or "re- fused," as required by statute, is not subject to review un- less an exception is noted. 34 The failure of the judge to sign the instructions, as required by the statute, cannot be taken advantage of on appeal in the absence of excep- tions, 35 and the same rule applies where a requested in- struction is erroneously modified. 36 Properly speaking, the rule that an exception must be saved at the time when the error complained of is com- mitted is more immediately for the protection of the trial court. Accordingly when the trial judge follows a custom that counsel are assumed to have excepted to the ruling of the court in the giving and refusing of instructions, such action will not be interfered with on appeal, the matter being within the discretionary power of the court. 37 The necessity of submitting requested instructions to counsel before they are given to the jury has been referred to in a prior chapter. 38 Under such a statute, requiring & Railway Co., 39 Mont. 213, 18 Colo. 153, 14 Pac. 216; Jolly v. State, Ann. Cas. 1201, 102 Pac. 310. 43 Neb. 857; Cunningham v. Seattle Nebraska. City of Kearney v. Elee. Eailway & Power Co., 3 Wash. Smith, 47 Neb. 408; City of Omaha St. 471, 28 Pac. 745. v. McGavock, 47 Neb. 313. 34— Barnewall v. Murrell, 108 Ohio. Interurban Railway & Ter- Ala. 366; Holley v. State, 75 Ala. minal Co. v. Broadus, 82 Ohio St. 14; Tyree v. Parham's Ex'r, 66 Ala. 396. 424; Knight v. Chicago, R. I. & P. South Dakota. Lyons v. Chicago, Ry. Co., 81 Iowa 310; Fish v. Chi- M. & St. P. R. Co., 26 S. D. 333, Ann. cago, R. I. & P. Ry. Co., 81 Iowa Cas. 1913 B 285n. 280; City of Chadron v. Glover, 43 Texas. Shaw v. State (Tex. Cr. Neb. 732. App.), 33 S. W. 1083; Ward v. State 35— Tyree v. Parham's Ex'r, 66 (Tex. Cr. App.) 29 S. W. 274. Ala. 424; Jones v. Greeley, 25 Fla. Wisconsin. Monaghan v. North- 629; Southern Exp. Co. v. VanMeter, western Fuel Co., 140 Wis. 457; 17 Fla. 783, 35 Am. Rep. 107. Thrasher v. Postel, 79 Wis. 503. 36— Tracey v. State, 46 Neb. 361. United States. Little Rock Gran- 37 — Union Loan, Storage & Mer- ite Co. v. Dallas County, 13 C. C. A. cantile Co. v. Farbstein, 348 Mo. 620, 66 Fed. 522. App. 216. 33 — Moffatt v. Tenney, 17 Colo. 38 — See ch. XV, § 177, ante. 189, 30 Pac. 348; Gibbs v. Wall, 10 934 Instructions to Jueies. [§423 instructions to be settled before they are read to the jury, counsel must have an opportunity to reserve exceptions to any instructions which they deem to be injurious to the rights of their client. 39 And when the trial court refuses to submit instructions in a case to the attorneys for their in- spection before the instructions are read to the jury, a de- fendant will be entitled to such objections and exceptions as he might have had if the instructions had been previously submitted to his counsel. 40 In some states statutory provi- sions exist rendering exceptions unnecessary, 41 and in some 39— Fowler v. State, 8 Okla. Cr. App. 130, 126 Pae. 831. 40— Fowler v. State, 8 Okla. Cr. App. 130, 126 Pac. 831. 41 — Alabama. Exceptions are unnecessary to the giving or refusal of instructions. Choate v.' Alabama '. Great Southern E. Co., 170 Ala. 590; Whitaker v. State, 106 Ala. 30. For- merly the rule was otherwise. See Alabama Great Southern E. Co. y. Tapia, 94 Ala. 226; Tennile v. Walshe, 81 Ala. 160. California. Eandall v. Freed, 154 Cal. 299, 97 Pae. 669. Exceptions are unnecessary in criminal cases as to charges re- quested by either party, but the statute does not apply to the charge which the court may give of its own motion. People v. Hart, 44 Cal. 598. Illinois. Under Municipal Court Act, § 24, par. 8, Jones & Adding- ton's Ann. St. H 3335 (8), ex- ceptions are unnecessary. Alexan- der v. Potts, 151 111. App. 587. See also, Frank Prox Co. v. Bryan, 162 111. App. 381; Siegmund v. Strack- bein, 140 111. App. 454. Kansas. Cobe v. Coughlin Hard- ware Co., 83 Kan. 522, 112 Pac. 115. Montana. Exceptions either to the giving or refusal of instructions are not required. Gassert v. Bogk, 7 Mont. 585, 19 Pac. 281, 1 L. E. A. 240n. New York. The appellate division or general term has power to re- verse a judgment and grant a new trial for errors in the charge, even in the absence of any exception. Under N. Y. Code Civ, Proc. § 992. Wilmarth v. Heine, 137 App. Div. (N. Y.) 526, See also, Levine v. Eosenschein, 134 App. Div. (N. Y.) 157; Engler v. Eichardson, 133 App. Div. 419; People v. Weiss, 129 App. Div. (N. Y.) 671; Lackawanna Steel Co. v. Pioneer S. S. Co., 69 Misc. (N. Y.) 104; Lessler v. Bernstein, 65 Misc. (N. Y.) 58; Wehle v. Haviland, 42 How. Pr. 399; Whittaker v. Dela- ware & H. Canal Co., 49 Hun 400; Gowdey v. Bobbins, 3 N. Y. Ann. Cas. 231; Pettis v. Pier, 4 Thomps. & C. 690. In Lattimer v. Hill, 8 Hun 171, the general term is quoted as saying: ' ' If the charge is erroneous, it is the duty of the court to grant a new trial, as the failure to except did not injure the plaintiff." This case is cited in most of the later deci- sions as an authority that a reversal may be had upon erroneous instruc- tions to the jury, though no excep- tions have been taken. In Gillett v. Trustees of Village of Kinder- § 423] Exceptions and Objections — Eeview. 935 criminal cases instructions have been reviewed although no hook, 77 Hun 604, the judgment was reversed, in the absence of excep- tions, for the reason that, during the trial, and on the submission of the case to the jury, an improper rule of damages was adopted. In Jacobs v. Sire, 4 Mise. 398, where the in- structions given to the jury upon the question of exemplary damages were erroneous, the general term of the superior court held that it was called upon to rectify the damage by ordering a new trial, and that its power to do so did not depend. upon an exception having been taken. The court of appeals has several times affirmed the power of the gen- eral term to reverse, in the absence of exception. See Roberts v. .Tobias, 120 N. Y. 1; Standard Oil Co. v. Amazon Ins. Co., 79 N. Y. 506; Ham- ilton v. Third Avenue R. Co.', 53 N Y. 25. The doctrine that Code Civ Proc. § 999 was intended to author ize a motion to set aside a verdict on the minutes, on the ground of an error in the charge to which no ex- ception was taken, and which, if the attention of the trial judge had been directed to it by an exception, might have been corrected at the trial, was questioned in Robson v. New York Cent. & H. River R. Co., 21 Hun 387, but the case was decided upon other grounds. In Richardson v. Van Voorhis, 20 N. Y. St. 667, there is a dictum that section 999 does not relieve a party from taking excep- tions to the admission or rejection of evidence, or to the incorrect state- ments that may appear in the charge. In Donahue v. New York Cent. & H. River R. Co., 15 Mise. 256, it was held that the court has power to grant a new trial, with or without an exception, for a misdi- rection of the court to the jury respecting a question of law. The court refused to express an opinion as to whether such ground of error could be reached under section 999. In Swartout v. Willingham, 31 Abb. N. Cas. 66, it was held that a motion under section 999 does not raise the question whether the court 's instruc- tions to the jury were erroneous, for," though a verdict upon erroneous instructions may be contrary to law, it is an error for which the court and not the jury are responsible, and must be pointed out by exception (following Richardson v. Van Voor- his, ante). To justify a reversal in the ab- sence of an exception, it must be ' ' evident that the court misunder- stood the law, and, as a consequence, misdirected and misled the jury in the general effect of the charge." Ackart v. Lansing, 6 Hun 476. See also, Lackawanna Steel Co. v. Pio- neer S. S. Co., 69 Misc. (N. Y.) 104. The court of appeals will not re- verse for such errors in the absence of an exception. Roberts v. Tobias, 120 N. Y. 1; Standard Oil Co. v. Amazon Ins. Co., 79 N. Y. 506; Hamilton v. Third Avenue R. Co., 53 N. Y. 25. In Vermilyea v. Palmer, 52 N. Y. 471, there is the following dictum in a decision of the court of appeals: "So, if the court should mislead the jury by an erro- neous charge upon the law, the error might, if fatal or important, be available in this court without an exception.'* But the doctrine here suggested has not been followed in 936 Instructions to Juries. [§423 exception was saved to the action of the trial court. 42 § 424. Sufficiency of exceptions. While there are certain general and well-recognized rules as to taking exceptions, 43 it should also he noted that the manner of taking exceptions is usually controlled by statute, 44 and such statutory provisions must be complied with to render the exception available. Accordingly, it has the later decisions, as appears from the cases above cited. North Carolina. See Ullery v. Guthrie, 148 N. C. 417. Ohio. Although exception to the charge or to the refusal to charge on certain points is general, the review- ing court will look to the whole record to see if error intervened to the prejudice of the party complain- ing of the instructions. Little Miami E. Co. v. Fitzpatrick, 4'2 Ohio St. 318; Weybright v. Fleming, 40 Ohio St. 52; Baker v. Pendergast, 32 Ohio St. 494, 30 Am. Rep. 620; Marietta & C. R. Co. v. Strader, 29 Ohio St. 448. Pennsylvania. The charge filed is made part of the record and error may be assigned without exceptions. Grugan v. City of Philadelphia, 158 Pa. 337; Janney v. Howard, 150 Pa. 339. Texas. Exceptions are not pre- requisite to a review of the charge in criminal cases. Rev. St. art. 1318 (see Vernon's Sayle's Tex. Civ. St. 1914 arts. 1607, 1612, 2061, 2062). Atchison, T. & S. F. Ry. Co. v. Click, 5 Tex. Civ. App. 224; Missouri Pac. Ry. Co. v. Martin, 2 Willson, Civ. Cas. Ct. App. § 656; Landes v. Eich- elberger, 2 Willson, Civ. Cas. Ct. App. §135; Hill v. State, 35 Tex. Cr. App. 371. Except in prosecutions for mis- demeanors, in which case exceptions are necessary. Purcelly v. State, 29 Tex. App. 1; Garner v. State, 28 Tex. App. 561; Mixon v. State, 28 Tex. App. 347; Comer v. State, 26 Tex. App. 509; Burns v. State, 23 Tex. App. 641; White v. State, 23 Tex. App. 154; Hilcher v. State, 60 Tex. Cr. App. 180; Tear v. State, 60 Tex. Cr. App. 155; McMil- lan v. State, 35 Tex. Cr. App. 370; Anderson v. State, 34 Tex. Cr. App. 96; Patterson v. State (Tex. Cr. App.), 29 S. W. 272; Moore v. State (Tex. Cr. App.), 28 S. W. 686; Heitz- elman v. State (Tex. Cr. App.), 26 S. W. 729; Garrett v. State (Tex. Cr. App.), 25 S. W. 285; Otto v. State (Tex. Cr. App.), 25 S. W. 285; Ken- nedy v. State (Tex. Cr. App.), 24 S. W. 650; Nance v. State (Tex. Cr. App.), 22 S. W. 44. 42 — In People v. Leonardi, 143 N. Y. 360, it was held that, in cap- ital cases, an exception is not a pre- requisite to a review on appeal of erroneous instructions, and in Thompson v. People, 4 Neb. 524, an instruction" on the trial of an indict- ment for larceny was reviewed with- out any exception having been saved. See also, Schlencker v. State, 9 Neb. 300; People v. Pal- lister, 138 N. T. 601. 43— See §§425, 426, post. 44 — Gerber v. Mtna, Indemnity Co:, 61 Wash. 184, 112 Pac. 272. 425] Exceptions and Objections — Review. 937 been held that a statement "given and excepted to," writ- ten on the margin or at the bottom of each instruction given by the court of its own motion, though dated and signed, does not save any exception, as it does not show who excepted to the same. 45 In one case where the respective attorneys were at their places at the attorneys' table, and dictated their excep- tions to the stenographer in' a low tone of voice, it was held that an objection that the court did not hear the exceptions, could not be sustained, as it was the judge's duty to hear such exceptions. 46 § 425. Necessity that exceptions be specific. Inasmuch as only such errors will be considered on ap- peal as are called to the attention of the trial court, it fol- lows that exceptions must specify particularly the alleged error complained of. 47 "A party excepting must make his exception so specific that the matter relied on as error will 45 — Habich v. University Park Bldg. Co., 177 Ind. 193. 46 — Ongaro v. Twohy, 49 Wash. 93, 94 Pae. 916. 47 — Arkansas. Missouri & N. A. R. Co. v. Daniels, 98 Ark. 352; El Dorado lee & Planing Mill Co. v. Kinard, 96 Ark. 184; St. Louis, I. M. & 8. R. Co. v. Dunn, 94 Ark. 407; Ames Shovel & Tool Co. v. Anderson, 90 Ark. 231. California. Frost v. Grizzly Bluff Creamery Cp., 102 Cal. 525, 36 Pac. 929; Gillaspie v. Hagans, 90 Cal. 90, 27 Pac. 34. Colorado. Portland Gold Min. Co. v. O'Hara, 45 Colo. 416, 101 Pae. 773; City of Denver v. Hyatt, 28 Colo. 129, 63 Pac. 403. District of Columbia. Bell v. Sheridan, 21 D. C. 370; Thomas v. Presbrey, 23 Wash. L. Rep. 123. Georgia. Millen & S. W. R. Co. v. Allen, 130 Ga. 656; Barber v. State, 112 Ga. 584; Fordham v. State, 112 Ga. 228; Central of Georgia Ry. Co. v. Bond, 111 Ga. 13; Whelan v. Georgia Midland & G. R. Co., 84 Ga. 506; Thompson v. Kelsey, 8 Ga. App. 23. Illinois. Peeararo v. Halberg, 246 111. 95. Indiana. Stevens v. Templeton, 174 Ind. 129; Baker v. McGinniss, 22 Ind. 257. Iowa. Davenport Gas Light & Coke Co. v. City of Davenport, 13 Iowa 229; Abbott v. Striblen, 6 Iowa 191. In Iowa, before the Code, a gen- eral exception was not sufficient, but under the Code where exceptions are taken to instructions to the jury at the time they are given, the ground of exception need not be stated. Williams v. Barrett, 52 Iowa 637; Johnson v. Chicago, R. I. & P. R. Co.,- 51 Iowa 25; Hale v. Gibbs, 43 938 Insteuctions to Jtjkies. [§425 be apparent to his adversary, and to the primary court. For his adversary, having his attention directed to the special matter relied on as erroneous, has the right and privilege of waiving such matter, rather than, by insisting on it, incur the hazard and delay of an appeal to a superior tribunal. The court, having its attention directed to the erroneous matter, might be satisfied of the error, into which Iowa 380; Van Pelt v. City of Dav- enport, 42 Iowa 308, 20 Am. Eep. 622n. But if the exceptions are not taken until after verdict, then the Code expressly requires that the ex- ception shall specify the part of the instruction objected to, and the ground of the objection. Byford v. Girton, 90 Iowa 661; Benson v. Lundy, 52 Iowa 265; Miller v. Gard- ner, 49 Iowa 234. See also, this sec- tion, post, as to exceptions to refusal of instructions. An exception after verdict, which specifies, as the objection, that the instructions are "not applicable, and are not the law applicable to the ease," is not specific enough. Miller v. Gardner, ante. Kansas. Isnard v. Edgar Zinc Co., 81 Kan. 765, 106 Pac. 1003; Stith v. Fullinwider, 40 Kan. 73, 19 Pac. 314; Sanford v. Gates, 38 Kan. 405, 16 Pac. 807; State v. Gurnee, 14 Kan. 111. Louisiana. State v. Chopin, 10 La. Ann. 458. Massachusetts. Howard v. Fall Biver Iron Works Co., 203 Mass. 273; Emmons v. Alvord, 177 Mass. 466,; Rock v. Indian Orchard Mills, 142 Mass. 522. Michigan. Keystone Lumber & Salt Mfg. Co. v. Dole, 43 Mich. 370. Minnesota. Dallemand v. Janney, 51 Minn. 514; Elmborg v. St. Paul City By. Co., 51 Minn. 70; Bishop v. St. Paul City By. Co., 48 Minn. 26; Larrabee v. Minnesota Tribune Co., 36 Minn. 141; Clapp v. Minneapolis & St. L. B. Co., 36 Minn. 6, 1 Am. St. Eep. 629; Hunter v. Jones, 13 Minn. 307 (Gil. 282); Dodge v. Chandler,' 9 Minn. "97 (Gil. 87); Foster v. Berkey, 8 Minn. 351 (Gil. 310). New Hampshire. Matthews v. Clough, 70 N. H. 600. New York. Mattice v. Wilcox, 147 N. Y. 624; Pratt v. Foote, 9 N. Y. 463. North Carolina. Jackson v. Wil- liams, 152 N. C. 203; Kendrick v. Dellinger, 117 N. C. 491; Everett y. Williamson, 107 N. C. 204; Dugger v. McKesson, 100 N. C. 1; Leak v. Covington, 99 N. C. 559; Sellers v. Sellers, 98 N. C. 13; Boggan v. Home, 97 N. C. 268; State v. Gard- ner, 94 N. C. 953; Williams v. Johnston, 94 N. C. 633. Ohio. Serviss v. Stockstill, 30 Ohio St. 418; Moody v. Thomas, 1 Disn. 294. Oregon. Simpson v. Miller, 57 Ore. 61, 29 L. B. A. (N. S.) 680n, Ann. Cas. 1912 D 1349n, 110 Pac. 485; Mahon v. Eankin, 54 Ore. 328, 103 Pac. 53, 102 Pac. 608; Kearney y. Snodgrass, 12 Ore. 311, 7 Pac. 309. Pennsylvania. Grantz v. Price, 130 Pa. St. 415. South Carolina. . Goodwin v. § 425] Exceptions and Objections — Review. 939 it may have fallen through inadvertence, and could volun- tarily correct it by a reversal of its rulings, and thus pro- tect the party excepting from all injury." 48 The exceptions should not be less definite and specific than when made in the appellate court, 49 and exceptions which do not clearly and specifically point out the objec- tionable part of an instruction cannot be sustained. 50 It should also be noted that upon obvious principles, only those grounds of exception will be considered on appeal which were stated to the trial court. 51 As an exception to Atlantic Coast Line E. Co., 82 S. C. 321; Davis v. Elmore, 40 S. C. 533; Norton v. Livingston, 14 S. C. 178. South Dakota. Comeau v. Hur- ley, 24 S. D. 255. Texas. Quintana v. State, 29 Tex. App. 401; Cleburne St. By. Co. v. Barnes, — Tex. Civ. App. — , 168 S. W. 991. Utah. Morris v. Salt Lake City, 35 Utah, 474, 101 Pae. 373. Vermont. Goodwin v. Perkins, 39 Vt. 598. Washington. Carroll v. Washing- ton Water Power Co., 56 Wash. 467, 105 Pac. 1026; Maling v. Crummey, 5 Wash. 222, 31 Pac. 600. Wisconsin. Corcoran v. Harran, 55 Wis. 120; Hamlin v. Haight, 32 Wis. 237. United States. Newport News & M. V. Co. v. Pace, 158 U. S. 36, 39 L. Ed. 887; Cleveland, C, C. & St. L. Ey. Co. v. Zider, 10 C. C. A. 151, 61 Fed. 908. 48 — Irvin v. State, 50 Ala. 181. See also, Jacobs v. Mitchell, 2 Colo. App. 456, 31 Pac. 235. 49— Cleburne St. Ey. Co. v. Barnes, — Tex. Civ. App. — , 168 S. W. 991. In Texas, "all that is required is that general exception be taken at the time, with a request for time to prepare a bill containing the specific objections, to be prepared before the verdict is returned, in order that the court may have an opportunity to correct the charge, if so desired." Phillips v. State, 19 Tex. App. 158. 50 — Burton v. West Jersey Ferry Co., 114 U. S. 474, 29 L. Ed. 215; Connecticut Mut. Life Ins. Co. v. Union Trust Co., 112 U. S. 250, 28 L. Ed. 708; Washington & G. E. Co. v. Varnell, 98 U. S. (9 Otto) 479, 25 L. Ed. 233. 51 — California. Eyall v. Central Pac. E. Co., 76 Cal. 474, 18 Pac. 430. Iowa. Price v. Burlington, C. E. & N. E. Co., 42 Iowa 16. Kansas. Sanford v. Gates, 38 Kan. 405, 16 Pac. 807. Minnesota. Cole v. Curtis; 16 Minn. 182 (Gil. 161). New York. Eichmond v. Second Ave. E. Co., 76 Hun 233; Grier v. Hazard, Hazard & Co., 39 N. Y. St. 74. North Carolina. Phipps v. Pierce, 94 N. C. 514. So, an exception to one instruc- tion raises no question as to another instruction, which was not excepted to. Eyall v. Central Pac. E. Co., 76 Cal. 474, 18 Pac. 430. See also, Varnum v. Taylor, 10 Bosw. (N. Y.) 148. - 940 Instbuctions to Jtjbies. [§425 the general rule, it may be stated that in a few states the rule requiring exceptions to be specific does not prevail. 52 The reports abound with cases illustrative of the general rule that the exceptions must be specific. 53 Thus an excep- tion to an entire charge on the ground that the court pre- sented the case in a manner calculated to prejudice the jury against the accused should indicate some particular in which harm was done. 54 An objection that an instruc- tion abstractly correct is inapplicable to the case must point out how and why it was inappropriate, 55 and an ob- jection that an instruction contains an assumption of fact must call attention to the specific ground of the objection. 56 ' 'An assignment of error to the effect that the charge of the 52 — 'California. Shea v. Potrero & B. V. E. Co., 44 Cal. 414; McCreery v. Everding, 44 Cal. 246. Kentucky. Williams v. Com., 80 Ky. 313. Montana. Woods v. Berry, 7 Mont. 195, 14 Pao. 758. Ohio. City of Cincinnati v. An- derson, 19 Ohio Cir. Ct. 603, 10 Ohio Cir. Dec. 522 (construing Rev. St. §5298; now Page & Adams Ann. Ohio Gen. Code §11560). Vermont. Fowlie's Adm'x v. Mc- Donald, Cutler & Co., 82 Vt. 230. Washington. Sexton v. School Dist. No. 34, 9 Wash. 5, 36 Pac. 1052. United States. Pritehett v. Sulli- van, 104 C. C. A. 624, 182 Fed. 480. 53 — The following cases present good illustrations of the rule: ■ Alabama. Treadwell v. State, 168 Ala. 96. Iowa. Benson v. Lundy, 52 Iowa 265. Montana. Hamilton v. Great Palls St. Ry. Co., 17 Mont. 334, 42 Pac. 860, 43 Pac. 713. Nevada. Hochsehultz v. Potosi Zinc Co., 33 Nev. 198, 110 Pac. 713. New York. People v. Uptori', 29 N. Y. St. 777. North Carolina. State v. Bow- man, 152 N. C. 817; Shober v. Wheeler, 113 N. C. 370. South Carolina. State v. Daven- port, 38 S. C. 348; Greene v. Duncan, 37 S. C. 239; Dobson v. Cothran, 34 S. C. 518. South Dakota. Comeau v. Hurley, 24 S. D. 275. Texas. Holman v. Herscher (Tex.), 16 S. W. 984. Utah. People v. Thiede, 11 Utah 241, 39 Pac. 837: Washington. Carroll v. Washing- ton Water Power Co., 56 Wash. 467, 105 Pac. 1026. United States. Allis v. United States, 155 U. S. 117, 39 L. Ed. 91; Western Coal & Mining Co. v. In- graham (C. C. A.), 70 Fed. 219. 54— State v. Varner, 115 N. C. 744. 55 — Central of Georgia Ry. Co. v. Bond, 111 Ga. 13. 56 — Emmons v. Alvord, 177 Mass. 466. § 425] Exceptions and Objections — Review. 941 court is conflicting, coupled with a failure to point out or suggest the precise nature of the conflict, no exception upon this ground being made upon the trial, and no conflict ap- pearing to the court, is not available. " 57 Also, no question as to the correctness of the instructions is presented for review by an exception to the verdict or findings as being contrary to the instructions or unsupported by the evi- dence. 58 An exception "to such portions of a charge" as are variant from the requests made, the variance not being pointed out, is insufficient. 59 A mere exception, while it challenges the correctness of an instruction, does not point out specifically wherein it is incorrect. But if instructions are paragraphed, an exception to each separate paragraph may be sufficient. 60 An exception to the portions of the charge on the measure of damages has been held suffi- ciently specific to raise the question of the correctness of the charge on one element of damages, since the measure of damages is made up of all the elements. 61 An objection that a charge is not a correct statement of the law in reference to the matters dealt with, is too gen- eral to require any consideration by the court, 62 and the objection that instructions were given at an improper time is not raised by a general exception to all the instruc-* tions. 63 Failure to comply with a statute requiring the word "given" to be written in the margin is not available error under a general exception. 64 And an exception gen- erally "to the ruling of the court in not permitting the cause to go to the jury upon the questions of fact involved" 57 — Emerson v. Ross' Ex'x, 17 61 — "Wales v. Pacific Elec. Motor Fla. 122. Co., 130 Cal. 521, 6$ Pac. 932, 1120. 58 — Britt v. Aylett, 11 Ark. 475, 62— Reed v. State, — Tex. Cr. 52 Am. Dec. 282; Eloyd v. Ricks, 11 App. — , 168 S. W. 541. Ark. 454; Carlson v. Dow, 47 Minn. 63 — City of Topeka v. Heitman, 335. 47 Kan. 739, 28 Pac. 1096. 59 — Beaver v. Taylor, 93 U. S. 46, 64 — The exception must assign 23 L. Ed. 797. that specific ground. Omaha & F. 60 — City of Denver v. Hyatt, 28 Land & Trust Co. v. Hansen, 32 Neb." Colo. 129, 63 Pac. 403. 449. 942 Instructions to Jukies. [§425 is insufficient, where no particular question of fact is spe- cified. 65 Objections that the court below did not review and analyze the evidence, and did not instruct the jury suffi- ciently as to the rules for weighing the value of testimony, are not sufficiently specific. 66 And a general exception to a charge that testimony of any witnesses found by the jury to have sworn falsely may be disregarded unless cor- roborated is not sufficiently explicit as an exception to the court's omission of the words "knowingly and wil- fully." 67 "A general objection will be insufficient where the special point of the objection insisted upon is such that, if it had been specifically pointed out at the trial, it might have been obviated, or where the general objection was calculated to divert the attention from the special objection on which the party intended to rely. ' ' Therefore, a general objection to an instruction waives the right to assert its inconsistency with other instructions. 68 An objection to the whole of an instruction defining the duty an employer owes to an employee as to the safety of the place for working, is insufficient to raise the point that the word "reasonably" was omitted before the word "safe." 09 Also, a simple exception to an instruction that a ^passenger was not guilty of contributory negligence, unless he knew of the danger in time to get out and avoid the injury, by remaining in a caboose after the train broke loose, and the conductor, who had s'ent back to flag another train, had told him it was following, and he had better watch out for it, and, if he saw it, get out of the way, is too general. 7 ? Under a statute requiring the "ground of objection" to 65 — Guggenheim v. Kirchhofer, 14 ' 69 — Western Coal & Mining Co. v. C. C. A. 72, 66 Fed. 755. Ingraham, 17 C. C. A. 71, 70 Fed. 66— Grantz v. Price, 130 Pa. 415. 219. 67 — Dallemand v. Janney, 51 70 — Newport News & M. V. Co. Minn. 514. v. Pace, 158 U. 8. 36, 39 L. Ed. 887. 68— Matthews v. Clough, 70 N. H. 600. § 426] Exceptions and Objections — Review. 943 be stated when exception to an instruction is taken after verdict by filing the same within three days, an exception stating "that the court erred in' submitting instruction No. 5, " is not sufficient to entitle the party to review of the in- struction complained of. 71 " §426. Necessity that exceptions be taken separately to instructions or parts of instructions. Exceptions must be taken to the instructions, or portion or portions complained of, separately, and not en masse, or to the charge as a whole. 72 It is necessary that excep- 71 — Iowa Code, § 3709. Harden- burg & Co. v. Roberts, 146 Iowa 696. 72 — Alabama. Marbury Lumber Co. v. Lamont, 169 Ala. 33; South- ern Hardware & Supply Co. v. Standard Equipment Co., 165 Ala. 582; Sharp v. Robertson's Ex'rs, 76 Ala. 343; Farley v. State, 72 Ala. 170; Stovall v. Fowler, 72 Ala. 77; Smith v. Sweeney, 69 Ala. 524; South & N. A. R. Co. v. Mc- Lendon, 63 Ala. 266; Gray v. State, 63 Ala. 66; Bernstein v. Humes, 60 Ala. 582, 31 Am. Rep. 52; South & N. A. R. Co. v. Jones, 56 Ala. 507; Caldwell v. Parmer's Adm'r, 56 Ala. 405; Jaeobson v. State, 55 Ala. 151; Holland v. Barnes, 53 Ala. 83, 25 Am. Rep. 595; Irvin v. State, 50 Ala. 181; Cohen v. State, 50 Ala. 108. Arkansas. Delaney v. Johnson, 95 Ark. 131. California. Brown v. Kentfield, 50 Cal. 129; Shea v. Potrero,& B. V. R. Co., 44 Cal. 414. Colorado. Melcher v. Beeler, 48 Colo. 233, 139 Am. St. Rep. 273, 110 Pae. 781; Pacific Mut. Life Ins. .Co. v. Van Fleet, 47 Colo. 401, 107 Pac. 1087; Coon v. Rigden, 4 Colo. 275. Florida. Stringfellow v. Coons, 57 Fla. 158, 131 Am. St. Rep. 1089. Georgia. Central Railroad & Banking Co. v. Ogletree, 97 Ga, 325; Thomas v. State, 84 Ga. 613; Rogers v. Rogers, 74 Ga. 598; Smith v. At- wood, 14 Ga. 402. Illinois. Haskins v. Haskins, 67 111. 446^ Indiana. Sherlock v. First Nat. Bank of Bloomington, 53 Ind. 73. Kansas. Young v. Youngman, 45 Kan. 65, 25 Pac. 209; Fullenwider v. Ewing, 25 Kan. 69; Wheeler v. Joy, 15 Kan. 389. Maine. State v. Pike, 65 Me. Ill; State v. Flaherty (Me.), 5 Atl. 563, 2 New Eng. Rep. 699. Massachusetts. Bartow v. Par- sons Pulp & Paper Co., 208 Mass. 232; Hunting v. Downer, 151 Mass. 275. Michigan. Geary v. People, 22 Mich. 220. Minnesota. Rheiner v. Stillwater St. Railway & Transfer Co., 31 Minn. 193. Montana. Gassert v. Bogk, 7 Mont. 585, 1 L. R. A. 240, 19 Pac. 281; Alderson v. Marshall, 7 Mont. 288, 16 Pac. 576; Woods v. Berry, 7 Mont. 195, 14 Pac. 758: Gum ^ 944 Instructions to Jueies. [§426 tions shall be specific, and it follows that this rule as to exceptions being taken to the portion of a charge complained Murray, 6 Mont. 10, 9 Pac. 447; Griswold v. Boley, 1 Mont. 545. Nebraska. Brooks v. Dutcher, 22 Neb. 644; Dodge v. People, 4 Neb. 220. New Jersey. Engle v. State, 50 N. J. L. 272. " New Mexico. Hagin v. Collins, 15 N. M. 621, 110 Pac. 840; Probst v. Trustees of Board of Domestic Missions, 3 N. M. (Gild.) 373, 5 Pac. 702. New York. Ostrander v. State, 192 N. T. 415; Wallace v. Williams, 37 N. Y. St. 812. North Carolina. Hemphill v. Mor- rison, 112 N. C. 756; Ward v. Albe- marle & Raleigh R. Co., 112 N. C. 168; State v. Brabham, 108 N. C. 793; State v. Harrell, 107 N. C. 944; State v. McDuffie, 107 N. C. 885; State v. Howell, 107 N. C. 835; Thompson v. Western' Union Tel. Co., 107 N. C. 449; Everett v. William- son, 107 N. C. 204; State v. Parker, 106 N. C. 711; Lindsey v. Sanderlin, 104 N. C. 331; Carlton v. Wilming- ton & Weldon B. Co., 104 N. C. 365; McKinnon v. Morrison, 104 N. C. 354; Hammond v. Schiff, 100 N. C. 161; Caudle v. Fallen, 98 N. C. 411; Barber v. Roseboro, 97 N. C. 192; State v. Nipper, 95 N. C. 653; Mc- Donald v. Carson, 94 N. C. 497. Ohio. Behrens v. Behrens, 47 Ohio St. 323, 21 Am. St. Rep. 820; Powers v. Hazelton & L. Ry. Co., 33 Ohio St. 429; Everett v. Sumner, 32 Ohio St. 562; Western Ins. Co. of Cincin- nati v. Tobin, 32 Ohio St. 77; Pitts- burgh, Ft. W. & C. Ry. v. Probst, 30 Ohio St. 104; Butcher's Melting Ass'n v. Commercial Bank of Cin- cinnati, 2 Disn. 46. Oklahoma. Farquhar Co. v. Sher- man, 22 Okla. 17, 97 Pac. 565. South Carolina. Bauskett v. Keitt, 22 S. C. 200; Lanier v. Tolleson, 20 S. C. 62; Walker v. Walker, 17 S. C. 338; Paris v. Dupre, 17 S. C. 288; State v. Gilreath, 16 S. C. 105; Nor- ton v. Livingston, 14 S. C. 177. Texas. Gonzalez v. State, 30 Tex. App. 203; Graham v. State, 29 Tex. App. 31; Eddy v. Still, 3 Tex. Civ. App. 346; Thompson v. State, 32 Tex. Cr. App. 265. Utah. Grow v. Utah Light & Rail- way Co., 37 Utah 41, 106 Pac. 514; Ryan v. Curlew Irrigation & Reser- voir Co., 36 Utah 382, 104 Pac. 218; Haun v. Rio Grande W. Ry. Co., 22 Utah 346, 62 Pac. 908. Vermont. Needham v. Boston & M. R. Co., 82 Vt. 518; Goodwin V. Perkins, 39 Vt. 598. Washington. Rush v. Spokane Falls & N. Ry. Co., 23 Wash. 501, 63 Pac. 500; Patchen v. Parke & Lacy Mach. Co., 6 Wash. 486, 33 Pac. 976. Wisconsin. Agnew v. Baldwin, 136 Wis. 263; Smith v. Coleman, 77 Wis. 343; Butler v. Cams, 37 Wis. 61; Hamlin v. Haight, 32 Wis. 237. United States. Holder v. United States, 150 U. S. 91, 37 L. Ed. 1010; Block v. Darling, 140 U. S. 234, 35 L. Ed. 476; Burton v. West Jersey Ferry Co., 114 U. S. 474, 29 L. Ed. 215; Connecticut Mut. Life Ins. Co. v. Union Trust Co., 112 U. S. 250, 28" L. Ed. 708; Mobile & M. Ry. Co. v. Jurey, 111 U. S. 584, 28 L. Ed. 527; Washington & G. R. Co. v. Var- nell, 98 U. S. (8 Otto) 479, 25 L. Ed. 233; Pennsylvania Co. v. Whitney, 95 C. C. A. 70, 169 Fed. 572; Morgan v. United States, 94 C. C. A. 518, § 426] Exceptions and Objections — Eeview. 945 of is a corollary, or an application of the rule stated in the previous section, 73 and it is held that an exception which is "descriptive only — not the reservation of an exception to a particular', exactly designated statement of the judge," is abortive. 74 Also, an exception taken which is a joint one, if not good as to one defendant, is not available to the others. 75 A general exception to the whole charge only raises the question as to its correctness as a whole, 76 and where an exception to two or more instructions is taken in gross, it is not available if any one or more of the instructions are correct. 77 Thus, it has been stated that the practice of allowing a general exception to the refusal to charge a mass of requests should not be followed. 78 A general ex- 169 Fed. 242; St. Louis, I. M. & S. Ey. Co. v. Spencer, 18 C. C. A. 114, 71 Fed. 93; Thorn v. Pittard, 10 C. C. A. 352, 62 Fed. 232; Price v. Pank- hurst, 10 TJ. S. App. 497, 3 C. C. A. 551, 53 Fed. 312. 73— See § 25, ante. , 74 — Birmingham By., Light & Power Co. v. Friedman, — Ala. — , 65 So. 939. 75— Jones v. Gould, 209 N. T. 419. 76 — Arkansas. Delaney v. John- son, 95 Ark. 131. Florida. Stringfellow v. Coons, 57 Fla. 158, 131 Am. St. Eep. 1089; May v. Gamble, 14 Fla. 467. Idaho. Snyder v. Viola Mining & Smelting Co., 2 Idaho 771. Iowa. Eddy v. Howard, 23 Iowa 175. Kansas. Eentig v. Kansas Loan & Trust Co., 28 Kan. 617; Wheeler v. Joy, 15 Kan. 389; Ferguson v. Graves, 12 Kan. 39. Nebraska. Eedman v. Voss, 46 Neb. 512. New York. Cronk v. Canfield, 31 Barb. 171. Blashfield Vol. 1—60 Ohio. Weber v. Wiggins, 11 Ohio Cir. Ct. 18. Wisconsin. Buffalo Barb Wire Co. v. Phillips, 67 Wis. 129. 77 — Habich v. University Park Bldg. Co., 177 Ind. 193. 78— People v. Katz, 209 N. Y. 311, Ann. Cas. 1915 A 501n. In this case 102 requests to charge were sub- mitted, and a general exception to each and every charge was permit- ted. See also, Bell v. Kendall, 93 Ala. 489; Nelson v. Warren, 93 Ala. 408; Goley v. State, 87 Ala. 57; Black v. Pratt Coal & Coke Co., 85 Ala. 504; Stevenson v. Moody, 83 Ala. 418; East Tennessee, V. & G. E. Co. v. Cary, 81 Ala. 159; Mayberry v. Leech, 58 Ala. 339; Irvin v. State, 50 Ala. 181; Murphy v. Lemay, 32 Ark. 223; Dunnington v. Frick Co., 60 Ark. 250; Oxley Stave Co. v. Staggs, 59 Ark. 370; Fordyce v. Bus- sell, 59 Ark. 312; Quertermous v. Hatfield, 54 Ark. 16; Gill v. Schneider, 48 Colo. 382, 110 Pac. 62; 'Melrose Mfg. Co. v. Kennedy, 59 Fla. 312.. 946 Instructions to Jukies. [§426 ception to each and all of instructibns. reserved, without calling the court's attention to the particular error asserted, or giving the court opportunity to correct such error is insufficient. 79 And such objection will be over- ruled unless the charge or part to which such exception is directed is wholly erroneous. 80 An exception to the "re- fusal and charge of the court," where the whole charge is contained in the bill of exceptions, and the record shows that six instructions were asked, of which two were given, one declined except as covered by the general charge, is insufficient. 81 i The addition of such words as ' ' specifically, " 82 or " sev- erally and separately," 83 or "every line, sentence and paragraph, ' ' 84 adds nothing to the force of such an excep- tion and it will nevertheless be overruled if any portion of the charge is correct. Thus an exception as a matter of 79— Eisminger v. Beman, 32 Okla. 818, 124 Pae. 289; McCabe & Steen Const. Co. v. Wilson, 17 Okla. 355, 87 Pac. 320; Glaser v. Glaser, 13 Okla. 389, 74 Pac. 944. 80 — Alabama. Savage v. Milum, 170 Ala. 115; Mayberry v. Leech, 58 Ala. 339. California. Cavallaro v. Texas & P. Ry. Co., 110 Cal. 348, 52 Am. St. Rep. 94, 42 Pac. 918; Moore v. Moore (Cal.), 34 Pac. 90. Colorado. Edwards v. Smith, 16 Colo. 529, 27 Pac. 809; Keith v. Wells, 14 Colo. 321, 23 Pac. 991. Michigan. McAllister v. Engle, 52 Mich. 56. Minnesota. Shull v. Raymond, 23 Minn. 66; Foster v. Berkey, 8 Minn. 351 (Gil. 310). New York. Caldwell v. Murphy, 11 N. Y. 416; Jones v. Osgood, 6 N. Y. 233; Piper v. New York Cent. & H. R. R. Co., 89 Hun 75. South Dakota. Banbury v. Sherin, 4 S. D. 88. Utah. Seoville v. Salt Lake City, 11 Utah 60, 39 Pac. 481. Washington. Meeker v. Gardella, 1 Wash. St. 139, 23 Pac. 837. Wisconsin. Luedtke v. Jeffery, 89 Wis. 136; Yates v. Bachley, 33 Wis. 185. United States. Block v. Darling, 140 U. S. 234, 35 L. Ed. 476. Contra, Lady v. Condit, 188 111. 234, rev'g 87 111. App. 250; Kansas Pac. R. Co. v. Nichols, 9 Kan. 235, 12 Am. Rep. 949n; Lorie v. Adams, 51 Kan. 692, 33 Pae. 599. 81 — Jones v. East Tennessee, V. & G. R. Co., 157 U. S. 682, 39 L. Ed. 856. 82 — People v., Bristol, 23 Mich. 117. 83 — Syndicate Ins. Co. v. Catch- ings, 104 Ala. 176; Kirby v. State, 89 Ala. 63; Edgell v. Francis, 86 Mich. 232. 84 — Lanielson v. Dyekman, 26 Mich. 168. § 426] Exceptions and Objections — Review. 947 precaution to ' ' each and every word, sentence, subdivision, phrase and each and every of the various allegations and instructions given by the court and each and every one .of the instructions given by the court to the jury," is of no avail. 85 But it has been held that the use of the word "each" in excepting to several instructions is not appro- priate to designate several collectively and independently of each other, without considering them severally, but is sufficient to raise objections to instructions severally when designated by it as excepted to. 86 And where the record reads as follows: "At the time of reading the above in- structions to the jury, the defendant duly excepted to all and to each and every one of them,"— it will be presumed that exceptions were duly taken to each of the instructions separately. 87 If the charge consists of a series of distinct propositions or instructions, any one of which is correct, a general ex- ception to the whole charge must be overruled. 88 An 85 — 'Carroll v. Washington Water But see Melcher v. Beeler, 48 Colo. Power Co., 56 Wash. 467, 105 Pae. 233, 139 Am. St. Rep. 273, 110 Pac. 1026. 181. 86 — Delaney v. Jackson, 95 Ark. District of Columbia. Mackey v. 131. Baltimore, etc., B. Co., 18 Wash. L. 87— Atchison, T. & S. P. E. Co. v. Eep. 767. Retford, 18 Kan. 245. Florida. Stringfellow v. Coons, 88 — Alabama. Savage v. Milum, 57 Pla. 158, 131 Am. St. Eep. 170 Ala. 115; Mobile & O. E. Co. 1089; Campbell v. Carruth, 32 v. George, 94 Ala. 199. Pla. 264; Wood v. State, 31 Pla. Arkansas. Atkins v. Swope, 38 221; Smith v. State, 29 Pla. 408; Ark. 528. Pinson v. State, 28 Pla. 735; Post California. Cavallaro v. Texas & v. Bird, 28 Pla. 1; Burroughs v. P. By. Co., 110 Cal. 348, 52 Am. St. State, 17 Fla. 643; John v. State, 16 Eep. 94, 42 Pac. 918; Eyall v. Cen- Pla. 554; Dupuis v. Thompson, 16 tral Pac. R. Co., 76 Cal. 474, 18 Pac. Pla. 69 j May v. Gamble, 14 Pla. 467. 430; Cockrill v. Hall, 76 Cal. 192, Georgia. Willis v. State, 93 Ga. 18 Pac. 318. 208; Ozburn v. State, 87 Ga. 173. Colorado. Gill v. Schneider, 48 Illinois. Hickam v. People, 137 Colo. 382, 110 Pac. 62; Wooton v. 111. 75; Hayward v. Catton, 1 111. Seigel, 5 Colo. 424; Kansas Pac. Ry. App. 577. Co. v. Ward, 4 Colo. 31; Cowell v. Indiana. State v. Gregory, 132 Colorado Springs Co., 3 Colo. 82. Ind. 387; Sherlock v. First Nat. 948 Instructions to Jubies. [§ 426 exception to several propositions en masse is insufficient if Bank of Bloomington, 53 Ind. 73; Garrigus v. Burnett, 9 Ind. 528; Kelly v. John, 13 Ind. App'. 579; Buchart v. Ell, 9 Ind. App. 353. Iowa. Hallenbeck v. Garst, 96 Iowa 509; Reeves v. Harrington, 85 Iowa 741; Norris v. Kipp, 74 Iowa 444; Pitman v. Molsberry, 49 Iowa 339; Moore v. Gilbert, 46 Iowa 508; Buter v. Toy, 46 Iowa 132; Bartle v. City of Des Moines, 38 Iowa 414; Cook v. Sioux City & P. B. Co., 37 Iowa 426; Brown v. Scott County, 36 Iowa 140; Mershon v. National Ins. Co., 34 Iowa 87; McCaleb v. Smith, 24 Iowa 591; Bedman v. Mal- vin, 23 Iowa 296; Carpenter v. Parker, 23 Iowa 450; Verholf v. Van Houwenlengen, 21 Iowa .429; Spray v. Scott, 20 Iowa 473; Shephard v. Brenton, 20 Iowa 41; Lyons v. Thompson, 16 Iowa 62; Armstrong v. Pierson, 15 Iowa 476; Jack v. Naber, 15 Iowa 450; Cousins v. Westcott, 15 Iowa 253; Loomis v. Simpson, 13 Iowa 532; Davenport Gas Ligbt & Coke Co. v. City of Davenport, 13 Iowa 229. Kansas. Crosby v. Wilson, 53 Kan. 565, 36 Pac. 985; Fleming v. L. D. Latham & Co., 48 Kan. 773, 30 Pac. 166; Byan v. Madden, 46 Kan. 245, 26 Pac. 679. Maine. Crosby v. Maine Cent. B. Co., 69 Me. 418; Macintosh v. Bart- lett, 67 Me. 130; Merrill v. Merrill, 67 Me. 70. Massachusetts. Bartow v. Par- sons Pulp & Paper Co., 208 Mass. 232; Com. v. Tolman, 149 Mass. 229, 14 Am. St. Bep. 414, 3 L. E. A. 747n; Adams v. Inhabitants of Chi- copee, 147 Mass. 440; Dwyer v. Pul- ler, 144 Mass. 420. Michigan. Edgell v. Francis, 86 Mich. 232; McAllister v. Engle, 52 Mich. 56; Prescott v. Patterson, 49 Mich. 622; McKay v. Evans, 48 Mich. 597; Hopkins Mfg. Co. v. Au- rora F. & M. Ins. Co., 48 Mich. 148; Goodsell v. Seeley, 46 Mich. 623, 41 Am. Bep. 183; Wheeler & Wilson Mfg. Co. v. Walker, 41 Mich. 239; Lange v. Kaiser, 34 Mich. 317; Tup- per v. Kilduff, 26 Mich. 394; Mandigo v. Mandigo, 26 Mich. 349; Danielson v. Dyckman, 26 Mich. 169; People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162n. Minnesota. Main v. Oien, 47 Minn. 89; Eussell v. St. Paul, M. & M. By. Co.,. 33 Minn. 210; Shull v. Baymond, 23 Minn. 66; Ferson v. Wilcox, 19 Minn. -449 (Gil. 388); Cole v. Curtis, 16 Minn. 182 (Gil. 161); Castner v. The Steamboat Dr. Franklin, 1 Minn. 73 (Gil. 51). Montana. Woods v. Berry, 7 Mont. 195, 14 Pac. 758. Nebraska. Bankers Life Ass'n v. Lisco, 47 Neb. 340; Hedriek v. Strauss, 42 Neb. 485; Gillilan v. Eollins, 41 Neb.. 540. New Hampshire. Beynolds v. Boston & M. B. Co., 43 N. H. 580. New Jersey. Engle v. State, 50 N. J. L. 272; Oliver v. Phelps, 21 N. J. L. 597. New Mexico. Hagin v. Collins, 15 N. M. 621, 110 Pac. 840. New York. .Wells v. Higgins, 132 N. Y. 459; Newall v. Bartlett, 114 N. Y. 399; Patton v. Boyal Baking Powder Co., 114 N. Y. 1. North Carolina. Hooks v. Hous- ton, 109 N. C. 623; Hammond v. Schiff, 100 N. C. 161; Dugger v. Mc- Kesson, 100 N. C. 1; Leak v. Cov- ington, 99 N. C. 559; Caudle v. Fallen, 98 N. C. 411; Sellers v. Sell- §426] Exceptions and Objections — Review. 949 any one of them is correct. 89 And the same rule applies where the exception is to the whole or a part of the charge, which part itself contains more than one proposition. 90 An ers, 98 N. C. 13; Boggan v. Home, 97 N. C. 268. Ohio. Berry v. State, 31 Ohio St. 219, 27 Am. Rep. 506; Adams v. State, 25 Ohio St. 584; Wright v. Denham, 2 Cleve. L. Bep. 146. Texas.. Gross v. Hays, 73 Tex. 515; Peace v. State, 27 Tex. App. 83; Cordway v. State, 25 Tex. App. 405. Utah. Holt v. Nielson, 37 Utah 566, 109 Pae. 470; People v. Hart, 10 Utah 204, 37 Pac. 330. Vermont. Bowell v. Puller's Es- tate, 59 Vt. 688. Washington. Liehty v. Tannatt, 11 Wash. 37, 39 Pac. 260. Wisconsin. Green v. Hanson, 89 Wis. 597; Kessler's Estate, 87 Wis. 660, 41 Am. St. Bep. 74; C. Aultman & Co. v. Case, 68 Wis. 612; Hulehan v. Green Bay, W. & St. P. B. Co., 68 Wis. 520; Bouck v. Enos, §1 Wis. 660; Dean v. Chicago & N. W. By. Co., 43 Wis. 305; Nisbet v. Gill, 38 Wis. 657. United States. Newport News & M. V. Co. v. Pace, 158 U. S. 36, 39 L. Ed. 887; Baltimore & P. E. Co. v. Mackey, 157 U. S. 72, 39 L. Ed. 624; Anthony v. Louisville & N. B. Co., 132 U. S. 172, 33 L. Ed. 301; White v. Barber, 123 U. S. 392, 31 L. Ed. 243; Mobile & M. By. Co. v. Jurey, 111 U. S. 584, 28 L. Ed. 527; Cooper v. Schlesinger, 111 U. S. 148, 28 L. Ed. 382; Worthington v. Mason, 101 U. S. (11 Otto) 149, 25 L. Ed. 848; Beaver v. Taylor, 93 U. S. (3 Otto) 46,. 23 L. Ed. 797; Johnston v. Jones, 1 Black (U. S.) 210, 17 L. Ed. 117; Lincoln v. Claf- lin, 7 Wall. (U. S.) 132, 19 L. Ed. 106; Harvey v. Tyler, 2 Wall. (U. S.) 328, 17 L. Ed. 871; Bogers v. The Marshal, 1 Wall. (U. S.) 644, 17 L. Ed. 714; Pennsylvania Co. v. Whitney, 95 C. C. A. 70, 169 Fed. 572; Masonic Benev. Ass'n of Cen- tral Illinois v. Lyman, 9 C. C. A. 104, 60 Fed. 498; Walker v. Windsor Nat. Bank, 5 C. C. A. 421, 56 Fed. 76; Gulf, C. & S. F. By. Co. v. Johnson, 4 C. C. A. 447, 54 Fed. 474; McClellan v. Pyeatt, 1 C. C. A. 613, 50 Fed. 686. 89 — It is only to this extent that the court will examine the instruc- tions under a general exception to the whole charge. City of Omaha v. McGavock, 47 Neb. 313; Oltmanns v. Findlay, 47 Neb. 289. 90 — Alabama. Bice v. Schloss, 90 Ala. 416; Dick v. State, 87 Ala. 61 Dunn v. State, 8 Ala. App. 382 Maxwell v. State, 3 Ala. App. 169 Colorado. Beals v. Cone, 27 Colo 473, 83 Am. St. Bep. 92, 62 Pac 948. District of Columbia. Hughes v. Heyman, 22 Wash. L. Bep. 737. • Plorida. John D. C. v. State, 16 Fla. 554. Georgia. Small v. Williams, 87 Ga. 681. Minnesota. Main v. Oien, 47 Minn. 89. New York. Board of Water Com'rs v. Burr, 35 N. Y. Super. Ct. 523. Oregon. Langford v. Jones, 18 Ore. 307, 22 Pae. 1064. Utah. Beaman v. Martha Wash- 950 Instructions to Juries. [§426 exception that "the court erred in giving to the jury in- struction No. — , and to the giving of which plaintiff duly excepted, " is a general exception, and cannot be considered unless the whole instruction is incorrect. 91 An exception to a charge in its entirety, and "to the following portions thereof," followed by a series of ten or more propositions embracing substantially all the charge, except the state- ment of the case, is not available if any one of the portions excepted to is good. 92 An exception to so much of the charge as is inclosed in brackets, 93 or to so much as is not inclosed in brackets, 94 must be overruled unless the whole of the designated part is erroneous. 95 "Where, however, the whole charge or part excepted to amounts merely to the assertion of a single proposition, a general exception is sufficient to present the question of the correctness of such proposition. 96 These principles apply to the erroneous refusal of in- structions, as well as to the giving of erroneous instruc- tions. Therefore, a general exception to a refusal of a request to charge which contains several instructions or propositions must be overruled, if any one of them is prop- erly refused. 97 Where several distinct requests for instruc- ington Min. Co., 23 Utah 139, 63 Mills Co., 15 Ore. 581, 16 Pac. 426. Pac. 631. 94 — Crosby v. Maine Cent. R. Co., Vermont. Dickerman v. Quincy 69 Me. 418. Mut. Fire Ins. Co., 67 Vt. 609. 95 — See also, Stroud v. State, 55 Washington. Rush v. Spokane Ala. 77; Bouck v. Enos, 61 Wis. Falls & N. Ry. Co., 23 Wash. 501, 660. 63 Pac. 500. 96— Boyee v. Wabash Ry. Co., 63 Wisconsin. Corcoran v. Harran, Iowa 70, 50 Am. Rep. 730; Requa v. 55 Wis. 120. Holmes, 16 N. Y. 193; Smith v. Mat- 91— Haun v. Rio Grande W. Ry. thews, 9 Misc. Rep. (N. Y.) 427; Co., 22 Utah 346, 62 Pac. 908. Nickum v. Gaston, 24 Ore. 380, 33 See also, Beaman v. Martha Wash- Pac. 671, 35 Pac. 31; Haun v. Rio ingtqn Min. Co., 23 Utah 139, 63 Pac. Grande W. Ry. Co., 22 Utah 346, 631. '" 62 Pac. 908. 92_Vider v. O'Brien, 18 U. S. 97 — Alabama. Pearson v. Adams, App. 711, 10 C. C. A. 385, 62 Fed. 129 Ala. 157; Teague v. Lindsey, 106 326. Ala. 266; Noblin v. State, 100 Ala. 93 — Tucker v. Salem Flouring 13; Welsh v. State, 97 Ala. 1; Jones § 426] Exceptions and Objections — Review. 951 tions to the jury have been presented to the court, most of which were in substance; embodied in the general charge, and one of which was erroneous, an "exception to the re- fusal of the court to charge the jury as requested" is not sufficient to authorize a review as to the refusal of any of the specific requests. 98 An exception to refusal to give "the four requests as asked for by defendant, ' ' without specify- ing which four of eight requests the court refused, is in- sufficient." But where five distinct requests to charge, separately numbered, were submitted to the court, who ruled upon — v. State, 96 Ala. 102; Nelson v. Warren, 93 Ala. 408; Walker v. State, 91 Ala. 76; Stitt v. State, 91 Ala. 10, 24 Am. St. Eep. 853; Woods v. State, 76 Ala. 35, 52 Am. Eep. 314; Stovall v. Fowler, 72 Ala. 77; Smith v. Sweeney, 69 Ala. 524; Williams v. State, 68 Ala. 551; Kil- patrick v. Pickens County, 66 Ala. 422; McGehee v. State, 52 Ala. 224. Colorado. Gill v. Schneider, 48 Colo. 382, 110 Pae. 62. Florida. Melrose Mfg. Co. v. Kennedy, 59 Fla. 312. Kansas. Fleming v. L. D. Latham & Co., 48 Kan. 773, 30 Pac. 166; Bailey v. Dodge, 28 Kan. 72. Louisiana. Wimbish v. Hamilton, 47 La. Ann. 246. Massachusetts. Murphy v. Mc- Nulty, 145 Mass. 464. Michigan. Edgell v. Francis, 86 Mich. 232. Minnesota. Webb v. Fisher, 57 Minn. -441; Delude v. St. Paul City Ey. Co., 55 Minn. 63; Eosquist v. D. M. Gilmore Furniture Co., 50 Minn. 192; Carroll v. Williston, 44' Minn. 287; Ferson v. Wilcox, 19 Minn. 449 (Gil. 388). New Jersey. Gardner v. State, 55 N. J. L. 17. New York. Bishop v. Village of Goshen, 120 N. Y. 337; Caldwell v. Murphy, 11 N. Y. 416. Ohio. Powers v. Hazelton & L. Ey. Co., 33' Ohio St. 429; Everett v. Sumner, 32 Ohio St. 562; Voelckel v. Banner Brewing Co., 9 Ohio Cir. Ct. 318. Oregon. Salomon v. Cress, 22 Ore. 177, 29 Pac. 439. South Carolina. Stackhouse v. Wheeler, 17 S. C. 105. Utah. Marks v. Tompkins, 7 Utah 421, 27 Pac. 6. Wisconsin. Welcome v. Mitchell, 81 Wis. 566, 29 Am. St. Eep. 913. United States. Bogk v. Gassert, 149 U. S. 17, 37 L. Ed. 631; Phoenix Life Ins. Co. v. Eaddin, 120 U. S. 183, 30 L. Ed. 644; Beaver v. Taylor, 93 U. S. (3 Otto) 46, 23 L. Ed. 797; Morgan v. United States, 94 C. C. A. 518, 169 Fed. 242; City of Key West v. Baer, ,13 C. C. A. 572, 66 Fed. 440; Walker v. Wind- sor Nat. Bank, 5 C. C. A. 421, 56 Fed. 76; McClellan v. Pyeatt, 1 C. C. A. 613, 50 Fed. 686. 98 — State v. Adamson, 43 Minn. 196. 99 — Columbia Mill Co. v. National Bank of Commerce, 52 Minn. 224. 952 Instructions to Jtjkies. [§ 426 denying or modifying — each separately, and counsel "ex- cepted to said refusals and modifications of said instruc- tions as given," it was held that such exception was sufficiently specific, and would be understood as applying to the ruling on each proposition. 1 Exceptions to certain "paragraphs" of the charge to the jury are insufficient when much, if not all, of the matter embraced in each paragraph is unobjectionable, and no particular proposition is indicated by the exceptions. 2 But if all the instructions asked were proper, and in such form that they should all have been given, then a general exception to the refusal to charge will be sufficient. 3 There would seem to be less reason for applying the rule to the case of a refusal of a request for several specific instruc- tions than exists in the case of errors in instructions given. In the former case it might well be held that the attention of the court was sufficiently directed to the alleged errors by a general exception, and this is the rule in a few states. 4 In the federal courts, the practice is governed by a rule of the supreme court, 5 as to bills of exceptions which 1 — Schurmeier v. Johnson, 10 Marshall v. Oakes, 51 Me. 308; Minn. 319 (Gil. 250). See also, People v. Holms, 6 Parker Cr. B. Planters' Bank of Prince George's (N. Y.) 25. * County v. Bank of Alexandria, 10 4 — See Weber v. Kansas City Gill & J. (Md.) 346. Cable By. Co., 100 Mo. 194, 18 Am. 2 — Bheiner v. Stillwater St. By. St. Bep. 541. In Iowa, provided the & Transp. "Co., 31 Minn. 193. exception is taken at the time a 3— Ocheltree v. McClung, 7 W. request for several instructions is Va. 232; Strohn v. Detroit & M. B. refused, a general exception will Co., 23 Wis. 126, 99 Am. Dec. 114n. be sufficient to raise the question of It has been held, however, that, error in refusing any one of them, when only one of plaintiff's requests Harvey v. Tama County, 53 Iowa was refused, a general exception is 228; Williamson v. Chicago, B. I. & sufficient. Sellers v. Hancock, 42 S. P. E. Co., 53 Iowa 126, 36 Am. Bep. C. 40. Where a requested instruc- 206n; Davenport Gas Light & Coke tion contains propositions which Co. v. City of Davenport, 13 Iowa might properly be given, but in con- 229; Eyser v. Weissgerber, 2 Iowa nection with other propositions 463. which should be refused, the whole 5 — See rule 4 of supreme court instruction is properly refused, and rules in 56 Law Ed. Appendix V a general exception is of no avail. "Bill of Exceptions." § 427] EXCEPTIONS AND OBJECTIONS B.EVIEW. 953 directs that "No bill of exceptions shall be allowed which shall contain the charge of the court at large to the jury, in trials at common law, upon any general exception to the whole of such charge. But the party excepting shall be required to state distinctly the several matters of law in such charge to which he excepts, and those matters of law, and those only, shall be inserted in the bill of excep- tions, and allowed by the court. ' ' A similar rule exists in the circuit court of appeals. The rule is mandatory. 6 The rule has sometimes been held to be even stricter than as here laid down, and it has been held that a general excep- tion to an entire charge containing several propositions is insufficient to raise any question on appeal, either as to the sufficiency or insufficiency of the instructions. 7 § 427. Time of taking exceptions. As a general rule, exceptions to instructions should be taken at the time such instructions are given to the jury, 8 and before the jury retire ; 9 and a like rule applies to the 6— Price v. Pankhurst, 10 U. S. 24 Pac. 1076; Taylor v. Eandall, 3 App. 497, 3 C. C. A. 551, 53 Fed. Colo. 399; Smith v. Cisson, 1 Colo. 29. 312. As to rule in Circuit Court of Florida. Gibson v. State, 26 Fla. Appeals, see Rule 10, 150 Fed. 109; Baker v. Chatfield, 23 Fla. 540; XXVII. Southern Exp. Co. v. Van Meter, 17 7 — Person v. Wilcox, 19 Minn. Fla. 783, 35 Am. Sep. 107; Baker v. 449 (Gil. 388); Judson v. Eeardon, State, 17 Fla. 406; Coker v. Hayes, 16 Minn. 431 (Gil. 387) ; Baldwin v. 16 Fla. 368. But see Morrison v. Blanchard, 15 Minn. 489 (Gil. 403); State,, 42 Fla. 149. State v. Staley, 14 Minn. 105 (Gil. Hlinois. Illinois Cent. E. Co. v. 75). Modglin, 85 111. 481; Armstrong v. ' 8— Illinois Cent. E. Co. v. Ferrell, Mock, 17 111. 166; Love v. Moyne- 108 111. App. 659; Patterson v. State, han, 16 111. 277, 63 Am. Dec. 306; 4 Okla. Cr. App. 542,- 113 Pac. 216. . Hill v. Ward, 7 111. 285; Updike v. 9 — Alabama. Eeynolds v. State, Armstrong, 4 111. 564; Gibbons v. 68 Ala. 507; City Council of Mont- Johnson, 4 111. 61; Leigh v. Hodges, gomery v. Gilmer, 33 Ala. 116, 70 4 111. 15; Illinois Cent. E. Co. v. Am. Dec. 562. Ferrell, 108 111. App. 659. But see California. Garoutte v. William- Keck v. Bushway, 242 111. 441, rev'g son, 108 Cal. 135, 41 Pac. ,.35, 413; 146 111. App. 4; Collins Ice-Cream Mallett v. Swain, 56 Cal. 171. Co. v. Stephens, 189 111. 200. Colorado. McFeters v. Pierson, Kansas. Board Com'rs Allen Co. 15 Colo. 201, 22 Am. St. Eep. 388, v. Boyd, 31 Kan. 765, 3 Pac. 523; 954 Instructions to Juries. [§427, refusal of instructions, 10 to the necessity of numbering in- structions n or to the necessity of marking instructions Joseph v. First Nat. Bank of Eldo- rado, 17 Kan. 256. Kentucky. Poston v., Smith's Ex'r, 8 Bush 589. Louisiana. Buel v. New York Steamer, 17 La. 541; Penn v. Collins, 5 Rob. 213. Maine. State v. Fenlason, 78 Me. 495; State v. Wilkinson, 76 Me. 317. Massachusetts. Mooar v'. Harvey, 125 Mass. 574; Lee v. Gibbs, 10 Al- len 248. Michigan. Garton v. Union City Nat. Bank, 34 Mich. 279; Doyle v. Stevens, 4 Mich. 87. Minnesota. O'Connor v. Chicago, M. & St. P. Ey. Co., 27 Minn. 166, 38 Am. Rep. 288n. Missouri. State v. Westlake, 159 Mo. 669; State v. Burk, 89 Mo. 635; State v. Reed, 89 Mo. 168; Waller v. Hannibal & St. J. R. Co., 83 Mo. 608; Boyse v. Crickard, 31 Mo. 530; Dozier v. Jerman, 30 Mo. 216; Pow- ers v. Allen, 14 Mo. 367; Gordon v. Gordon, 13 Mo. 215; Randolph v. Alsey, 8 Mo. 656; State v. Hayden, 61 Mo. App. 662. Nebraska. Schroeder v. Rinehard, '25 Neb. 75; Sherwin v. O'Connor, 24 Neb. 603; Nyee v. Shaffer, 20 Neb. 507; Heldt v. State, 20 Neb. 492, 57 Am. Rep. 835n. . North Carolina. Harrison v. Chap- pell, 84 N. C. 258; State v. Crockett, 82 N. C. 599. Under the Code (see Pell's Rev. 1908 §§554, 542), excep- tions may be taken at any time. Smith v. Smith, 108 N. C. 365; State v. Eliason, 91 N. C. 564. Ohio. Little Miami R. Co. v. Washburn, 22 Ohio St. 324. Texas. Mooring v. State, 42 Tex. 85; Martin v. State, 25 Tex. App. 557; Hobbs v. State, 7 Tex. 117; Williams v. State, 4 Tex. App. 5 Grant v. State, 2 Tex. App. 164 Alderson v. State, 2 Tex. App. 10 Porter v. State, 1 Tex. App. 477. Vermont. State v. Clark, 37 Vt. 471. West Virginia. Wickes v. Balti- more & O. B. Co., 14 W. Va. 157; Robinson v. Pitzer, 3 W. Va. 336; Nadenbousch v. Sharer, 2 W. Va. 285. Wisconsin. Butler v. Cams, 37 Wis. 61. \ United States. Railway Co. v. Heck, 102 U. S. (12 Otto) 120, 26 L. Ed. 58; Barton v. Forsyth, 20 How. 532, 15 L. Ed. 1012; United States v. Breitling, 20 How. 252, 15 L. Ed. 900; Phelps v. Mayer, 15 How. 160, 14 L. Ed. 643; Wells Fargo & Co. v. Zimmer, 108 C. C. A. 242, 186 Fed. 130; Berwind-White Coal Min. Co. v. Pirment, 95 C. C. A. 1, 170 Fed. 151; MaeDonald v. United States, 12 O. C. A. 339, 63 Fed. 426; Park Bros. & Co. v. Bushnell, 9 C. C. A. 138, 60 Fed. 583; Bracken v. Union Pac. By. Co., 5 C. C. A. 548, 56 Fed. 447. 10 — Instructions refused must be excepted to at the time, and before the retirement of the jury: Florida. Shepherd v. State, 36 Fla. 374. Massachusetts. Reed v. Call, 5 Cush. 14. Missouri. Dozier v. Jerman, 30 Mo. 216. Nebraska. Tagg v. Miller, 10 Neb. 442. North Carolina. Branton v. O'Briant', 93 N. C. 99. 11— Gibson v. Sullivan, 18 Neb. 558. §427] Exceptions and Objections — Review. 955 "given" or "-refused." 12 Accordingly, it is held that an exception to the ^giving of instructions, 13 or their refusal, 14 is too late if taken after the verdict is rendered. The failure to number instructions as required by statute cannot be objected to for the' first time on motion for a new trial, 15 and a similar rule applies to the giving 16 or The objection that special instruc- tions given at the request of the ad- verse party were not numbered and signed as required by Mills' Ann. Code Colo., §187, subd. 5, will not be considered on a motion for new trial, or on appeal, unless made in apt time. Moffatt v. Tenney, 17 Colo. 189, 30 Pac. 348. 12 — Barnewall v. Murrell, 108 Ala. 366; Holley v.. State, 75 Ala. 14; Tagg v. Miller, 10 Neb. 442. 13 — Alabama. Bynum v. South- ern Pump & Pipe Co., 63 Ala. 462. Idaho. State v. O 'Donald, 4 Idaho 343, 39 Pac. 556. Illinois. Fitzgerald v. James, 160 111. App. 434. • Indiana. Neff v. Masters, 173 Ind. 196. Massachusetts. Nixon y. Ham- mond, 12 Cush. 285; Leach v. Woods, 14 Pick. 461; Inhabitants of Buckland v. Inhabitants of Charle- mont, 3 Pick. 173. Minnesota. Barker v. Todd, 37 Minn. 370. North Carolina. State v. Hart, 116 N. C. 976; Tayloe v. Old Domin- ion Steamship Co., 88 N. C. 15. Virginia. Washington & N. O. Tel. Co. v. Hobson, 15 Gratt. 122. West Virginia. Wustland v, Pot- terfield, 9 W. Va. 438. , United States. Thiede v. Utah Territory, 159 U. S. 510, 40 L., Ed. 237; Michigan Ins. Bank v. Eldred, 143 U. S. 293, 36 L. Ed. 162. 14 — State v. Debnam, 98 N. C. 712; Davis v. Council, 91 N. C. 725. But see State v. Varner, 115 N. C. 744. 15— Moffatt v. Tenney, 17 Colo. 189, 30 Pac. 348. ' . 16 — Arkansas. Carroll v. Bowler, 40 Ark. 168. Florida. West v. Blackshear, 20 Pla. 457. Illinois. Illinois Cent. B. Co. v. Modglin, 85 111. 481; Dickhut v. Durrell, 11 111. 72. Contra, Collins Ice-Cream Co. v. Stephens, 189 111. 200 (decided under Practice Act 1872, §53; see Jones & Addington's 111. St. Ann. f1[ 8618, 8620). Indiana. Louisville, N. A. & C. Ey. Co. v. Hart, 119 Ind. 273, 4 L. B. A. 549; Jaqua v. Cordesman & Egan Co., 106 Ind. 141. Iowa. Snyder v. Nelson, 31 Iowa 238; Snyder v. Eldridge, 31 Iowa 129 Garland v. Wholebau, 20 Iowa 271 Curtis v. Hunting, 6 Iowa 536 Whitney v. Ohnstead, 5 Iowa 373 McKell , v. Wright, 4 Iowa 504. Minnesota. Barker v. Todd, 37 Minn. 370. Mississippi. Barney v. Scherling, 40 Miss. 320. Missouri. State v. Meyers, 99 Mo. 107; State v. Bambo, 95 Mo. 462; Gordon v. Gordon, 13 Mo. 215; State v. Hayden, 61 Mo. App. 662. North Carolina. Harrison v. Chap- pell, 84 N. C. 258. North Dakota. Boss v. Northern 956 Instructions to Jueies. [§427 refusing 17 of instructions, although in one jurisdiction, at least, the exception will be deemed abandoned, and is un- available unless renewed and made the basis of a motion for a new trial. 18 So, the failure to mark instructions "given" or "refused," as required by statute, cannot be taken advan- tage of on motion in arrest of judgment, 19 nor for the first time on appeal. 20 It will be presumed on appeal, in the absence of any showing to the contrary, that, the exceptions were taken in proper time. 21 Under some statutes, objections and exceptions must be presented to the court before the charge is read to the jury, 22 and other statutes provide that exceptions to either, the giving or refusal of instructions may be taken within three days after verdict, 23 on motion for a new trial, 24 or at any time before final judgment is entered. 25 In one state, it has been held that the judge "has power to extend the time within which exceptions to a charge may Pac. R. Co., 2 N. D. 128, 33 Am. St. Eep. 756n. Texas. Vanwey v. State, 41 Tex. 639 j Goode v. State, 2 Tex. App. 520; Franklin v. State, 2 Tex. App. 8; Edwards v. State, — Tex. Cr. App. — , 166 S. W. 517. 17— Shepherd v. State, 36 Fla. 374; State v. Halford, 104 N. C. 874. 18— State v. Grote, 109 Mo. 345; Haynes v. Town of Trenton, 108 Mo. 123; State v. Nelson, 101 Mo. 477. Objection for failure to mark in- structions "Given" or "Refused" must be renewed in motion for a new trial. Tagg v. Miller, 10 Neb. 442. 19— Holley v. State, 75 Ala. 14. 20— Knight v. Chicago, R. I. & P. Ry. Co., 81 Iowa 310; Fish v. Chi- cago, R. I. & P. Ry. Co., 81 Iowa 280. 21 — Strickfaden v. Zipprick, 49 111. 286; Wakeman v. Lyon, 9 Wend. (N. T.)" 241. 22 — Guiterrez v. State, — Tex. Cr. App. — , 170 S. W. 717; Eldridge v. Citizens' Ry. Co., — Tex. Civ. App. — , 169 S. W. 375. Under Act of April 5, 1913, amending article 737, Code Civ. Proc, objections cannot be consid- ered when not made before charge is read to jury. Hawkins v. State, — Tex. Cr. App. — , 168 S. W. 93. 23 — Maxon v. Chicago, M. & St. P. Ry. Co., 67 Iowa 226; Bailey v. Anderson, 61 Iowa 749; Harrison v. Charlton, 42 Iowa 573. Formerly, the practice in Iowa was in accord with the general rule. Rawlins v. Tucker, 3 Iowa 213. 24 — Barney v. Scherling, 40 Miss. 320. 25 — Collins Ice-Cream Co. v. Ste- phens, 189 111. 200; Uhe v. Chicago, M. & St. P. Ry. Co., 4 S. D. 505. § 428] Exceptions and Objections — Eeview. 957 be taken, either before or after such time^ has elapsed. ' ' 26 In another state, under a statutory provision that the party objecting to the decision of the court must except at the time the decision is made, the rule is stated to be that exceptions to instructions must be taken before the jury have delivered their verdict. Whether this is a more lib- eral rule than the one above stated is not clear, but it certainly does not restrict the taking of objections to the precise time of the giving of the instructions. 27 Under a statute dispensing with the necessity of taking exceptions to the giving, refusing or modifying of instruc- tions, it has been held that the legislature will not be deemed to have intended to do away with the necessity for making objections in some appropriate manner, so as to give the trial court an opportunity to correct errors. 28 § 428.. Necessity of bill of exceptions. As a general rule, where there are no statutory provisions governing the subject, the instructions given at the trial form no part of the record, and are not subject to review, on appeal, unless brought into the record by a formal bill of exceptions. 29 And it is usually held that a formal bill of 26 — Lindblom v. Sonstelie, 10 N. 94 Ark. 147; Cheaney v. State, 36 D. 140 (construing Rev. Code, Ark. 74. §5298; see N. Dak. Comp. St. 1913, Colorado. Big Kanawha Co. v. §7653). Jones, 45 Colo. 381, 102 Pac. 171; 27— Vaughn v. Ferrall,. 57 Ind. Witcher v. Watkins, 31 Colo. 548, 19 182; Wood v. McClure, 7 Ind. 155; Pac. 540; Brink v. Posey, 11 Colo. Roberts v. Higgins, 5 Ind. 542; Jones 521, 19 Pac. 467; Banks v. Hoyt, v. Van Patten, 3 Ind. 107, 11 Colo. 399, 18 Pac. 448; McDon- 28 — Denver & R. G. R. Co. v. aid v. Clough, 10 Colo. 59, 14 Pac. Ryan, 17 Colo. 98, 28 Pac. 79. See 121. also, City of Durango v. Luttrell, Florida. Richardson v. State, 28 18 Colo. 123, 31 Pac. 853; Wray v. Fla. 349; Parrish v. Pensacola & Carpenter, 16 Colo. 271, 25 Am. St. A. R. Co., 28 Fla. 252. Rep. 265, 27 Pac. 248; Keith v. Illinois. Indiana, D. & W. Ry. Co. Wells, 14 Colo. 321, 23 Pac. 991. v. Hendrian, 190 111. 501, aff'g 92 29 — Alabama. North Birmingham 111. App. 462; City Cab Co. v. Taylor, Lumber Co. v. Sims & White, 157 30 111. App. 47; Liverpool, L. & G. Ala. 595., Ins. Co. v. Sanders, 26 111. App. 559; Arkansas. McKinley v. Broom, Obermark v. People, 24 111. App. 958 Instkuctions to Jueies. [§428 exceptions is necessary although the instructions may be 259. See also, Loeb v. Alexander, 174 111. App. 143; Devine v. Chicago City By. Co., 166 111. App. 177. Indiana. Clanin v. Fagan, 124 Ind. 305; Landwerlen v. Wheeler, 106 Ind. 523; Starnes v. Schofield, 5 Ind. App. 4; Henley v. Bronnen- berg (Ind. App.), 31 N. E. 583; Steeg v. Walls, 4 Ind. App. 18; Elle- barger v. Swiggett, 1 Ind. App. 598. Iowa. Lewis v. May, 22 Iowa 599; Pierce v. Locke, 11 Iowa 454; State v. Jones, 11 Iowa 11; Jordan v. Quick, 11 Iowa 9; Green v. Mc- Faddin, 5 Iowa 549; Garber v. Mor- rison, 5 Iowa 476; Harmon v. Chan- dler, 3 Iowa 150; Ewing v. Scott, 2 Iowa 447; Claussen v. La Franz, 1 Iowa 226; Parker v. Pierce, 4 Greene 452; Eeed v. Hubbard, 1 Greene 153. Kansas. Moore v. Wade, 8 Kan. 380. Kentucky. Forest v. Crenshaw, 81 Ky. 51. Louisiana. State v. McClanahan, 9 La. Ann. 210. "Although in writ- ing, the judge's charge was not ex- cepted to. We held, in State v. Kicks, 32 La. Ann. 1098, that, where the charge was in writing, and em- bodied in the record, we would no- tice errors, under proper assignment thereof, although not presented by bill of exceptions. While not now overruling this opinion, which, how- ever, is contrary to prior authority 00 La. Ann. 450), and therefore to be strictly construed, we deem it proper to say that it is in every way preferable that charges should be excepted to when given, in order that the judge may have an oppor- tunity of explaining or correcting his charge at the time; otherwise, the defendant would be at liberty to take his chances of acquittal on the charge as delivered, and, if con- victed, to urge his objection in sub- sequent proceedings. Only in case of gross and unambiguous error will we sustain objections to the charge not made and presented by bill of exceptions at time of delivery." State v. Beaird, 34 La. Ann. 104. Maryland. Sowerwein v. Jones, 7 Gill & J. 335. Michigan. Wagar v. Peak, 22 Mich. 368. Mississippi. Peden v. State, 61 Miss. 267; Haynie v. State, 32 Miss. 403. Montana. Bobinson v. Helena Light & Eailroad Co., 38 Mont. 222, 99 Pac. 837. Nevada. State v. Ah Mook, 12 Nev. 369; State v. Forsha, 8 Nev. 137. Ohio. City of Toledo v. Preston, 50 Ohio St. 361; Pettett v. VanFleet, 31 Ohio St. 536. Pennsylvania. Yardley v. Cuth- bertson, 14 Wkly. Notes Cas. 29. Tennessee. Chesapeake, O. & S. W. B. Co. v. Foster, 88 Tenn. 671; Huddleston v. State, 7 Baxt. 55; Bass v. State, 6 Baxt. 580; Owens v. State, 16 Lea 1; McGhee v. Grady, 12 Lea 89;, Hardwick v. State, 6 Lea 229. ' Texas. Texas Telegraph & Tele- phone Co. v. Seiders, 9 Tex. Civ, App. 431; Gulf, C. & S. F. Ey. Co. v. Holt, 1 Willson Civ. Cas. Ct. App., §835. Utah. People v. Pettit, 5 Utah 241, 14 Pac. 337. Vermont. Fletcher v. Howard, 2 Aiken 115, 16 Am. Dec. 686. Wisconsin. Collins v. Breen, 75 § 428] Exceptions and Objections — Review. 959 improperly embodied in the record. 30 An instruction can- not be proved by witnesses, and an alleged error therein can be examined only by a bill of exceptions. 31 In a number of states, however, the statutes provide that the instructions shall be a part of the record, and in the states where such statutes exist, the instructions may be reviewed without a bill of exceptions. 32 And it has Wis. 606; Koenigs v. Jung, 73 Wis. 178; Mullen v. Eeinig, 68 Wis. 408. 30 — California. People v. Beaver, 83 Cal. 419, 23 Pac. 321; People v. Keeley, 81 Cal. 210, 22 Pae. 593; People v. Rogers, 81 Cal. 209, 22 Pae. 592; People v. January, 77 Cal. 179, 19 Pac. 258. Colorado. Witcher v. Watkins, 11 Colo. 548, 19 Pac. 540; Banks v. Hoyt, 11 Colo. 399, 18 Pac. 448. Illinois. Chicago, M. & St. P. Ry. Co. v. Yando, 127 111. 214; Shedd v. Dalzell, 30 111. App. 356; City Cab Co. v. Taylor, 30 111. App. 47; Ober- mark v. People, 24 111. App. 259. Indiana. Archibald v. State, 122 Ind. 122; Marquadt v. Sieberling, 121 Ind. 307; Delhaney v. State, 115 Ind. 499; Louisville, N. A. & C. Ry. Co. v. Wright, 115 Ind. 378, 7 Am. St. Rep. 432; Brown v. State, 111 Ind. 441; Whetton v. Clayton, 111 Ind. 360; Hollingsworth v. State, 111 Ind. 289. Iowa. State v. Hall, .79 Iowa 674. Kansas. State v. Sipe, 38 Kan. 201, 16 Pac. 257; State v. Smith, 38 Kan. 194, 16 Pac. 254. Kentucky. Goldsbury v. May, 1 Litt. 254. Montana. Scherrer v. Hale, 9 Mont. 63, 22 Pae. 151. Nebraska. Chamberlain v. Brown, 25 Neb. 434; Yates v. Kinney, 23 Neb. 648. Tennessee. Chesapeake, O. & S. W. R. Co. v. Foster, 88 Tenn. 671. Utah. People v. Pettit, 5 Utah 241, 14 Pac. 337. Wisconsin. Collins v. Breen, 75 Wis. 606. 31 — State v. McClanahan, 9 La. Ann. 210. 32 — Indiana. In this state,, it is held that instructions may be brought up for review in either of two modes, i. e., under the statute by compli- ance with its provisions, or by bill of exceptions in the usual way. Clanin v. Fagan, 124 Ind. 304. And see Fowler v. Ft. Wayne & W. Val. Traction ' Co., 45 Ind. App. 441; Wiseman v. Gouldsberry, 45 Ind. App. 677. Either is sufficient: Jeffersonville, M. & I. R. Co. v. Cox, 37 Ind. 325; Newby v. Warren, 24 Ind. 161. Compare Cross v. Pear- son, 17 Ind. 612. By statute, instructions are made a part of the record, and it is pro- vided that if a party wishes to ex- cept, it shall be sufficient to write on the margin or at the close of each instruction the words, "Refused and excepted to," or "Given and ex- cepted to," which memorandum must be signed by the judge, and dated. This statute does not apply where the instructions are properly made part of the bill of exceptions. Plank v. Jackson, 128 Ind. 424. (See also, Muncie & P. Traction Co. v. Black, 173 Ind. 142.) But "they must be brought into the record by a bill of exceptions, or 960 Instructions to Jtjeies. [§ 428 been held that where a statute requires the instructions to signed by the judge, and filed as a • part of the record." Vandalia Coal Co. v. Yemm, 175 Ind. 524; Muncie & P. Traction Co. v. Hall, 173 Ind. 95; Clanin v. Pagan, 124 Ind. 304; Bottorff v. Bottorff, 45 Ind. App. 692; Powler v. Ft. Wayne &.W. Val. Traction Co., 45 Ind. App. 441; Mace y. 'Clark, 42 Ind. App. 506. Where all the instructions are in the record, as provided by Eev. St. Ind. 1881, §535 (see Burns' Ann. St. 1914, § 558), it is not necessary that the question of their property be presented by bill of exceptions, as provided by Id. § 630 (see Burns' Ann. St. 1914, § 561), for the presen- tation of reserved questions of law. Eiehardson v. Coleman, 131 Ind. 210, 31 Am. St. Rep. 429. See also, Butt v. Iffert, 171 Ind. 554; Lower v. Pranks, 115 Ind. 334; Cumberland Telephone & Telegraph Co. v. Hat- ter, 44 Ind. App. 625; Supreme Tent Knights of Maccabees of World v. Ethridge, 43 Ind. App. 475. As it originally stood, the statute required the memorandum to be signed by the party or his attorney. Sutherland v. Hankins, 56 Ind. 343; Maghee v. Baker, 15 Ind. 254; Bush v. Dur- ham, 15 Ind. 252; State v. Babourn, 14 Ind. 300. And the signature by the judge, which is now required, was insufficient. Newby v. Warren, 24 Ind. 161; Ledley v. State, 4 Ind. 580. If an instruction asked for is put in writing, signed by the party or his attorney, and an entry made of the exception to its being given or refused, and also signed in the same manner, it becomes part of the record without the authentication of the judge, or being put into a bill of exceptions. Jeffersonville, M. & I. R. Co. v. Cox, 37 Ind. 325. Iowa. By statutory provision (Code, §2789; see Code 1897,' §§2789, 3675), instructions and the action of the court thereon in giving or refusing them constitute a part of the record, and need not be set out in the bill of exceptions in order to bring them before the supreme court. Allison v. Jack, 76 Iowa 205; Roberts v. Leon Loan & Abstract Co., 63 Iowa 76. Although the trial court may settle a bill of exceptions in accordance with the prior prac- tice. State v. Kehr, 137 Iowa 91. Where the giving and refusal of in- structions and exceptions to such rulings are noted on the margins of the instructions, the supreme court can review such rulings, although they are not preserved by a bill of exceptions. Wells v. Burling- ton, C. R. & N. R. Co., 56 Iowa 520. The instructions, when filed, become a part of *the record, and may be certified by the clerk. Parker v. Middleton, 65 Iowa 200. While it is not essential that instruc- tions should be preserved by bill of exceptions when they have been filed and made part of the record, yet it is essential that they be certi- fied by the clerk of the trial court to the supreme court; and, if they cannot be made a part of such tran- script, error in the giving of them cannot be considered. Bonney v. Cocke, 61 Iowa 303. Before the en- actment of the statutory provision above referred to, it was held that instructions were not a part of the record unless made so by a bill of exceptions. Pierce v. Locke, 11 Iowa 454; Ewing v. Scott, 2 Iowa 447; § 429] Exceptions And Objections — Review. 961 be filed, with the clerk and entered in the court journal, they need .not be brought up in the bill of exceptions. 33 § 429. Sufficiency of record on appeal in general. On appeal, the court is confined solely to the matters appearing in the record, in examining the case, and it fol- lows that the appealing party must see that the record is sufficient to show conclusively that the court below com- mitted error warranting reversal of the judgment. 34 Ac- Claussen v. La Franz, 1 Iowa 226; Parker v. Pierce, 4 Greene 452. Kansas. "In civil actions, the statute seems to provide that; in- structions reduced to writing and signed by the judge shall, when filed, become a part of the record." State v. Lewis, 10 Kan. 157. "In- structions not embodied in a formal bill of exceptions, nor signed by the judge of the court below, as pro- vided by statute [Gen. St. pp. 682, 686, §§ 276, 303; see Gen. St. 1909, § 6170], nor embodied in a case made for the supreme court, as provided by statute [Gen. St. p. 737, §§546-549; Laws 1871, p. 274; see Gen. St. 1909, § 6170], form no part of the record, and ' will not be considered by the supreme court." Kshinka v. Cawker, 16 Kan. 63. Instructions given by the court in a criminal case, not pre- served by a bill of exceptions, form no part of the record, and cannot be considered on an appeal to the su- preme court. State v. Eatner, 44 Kan. 429, 24 Pac. 953; ' State v. Smith, 38 Kan. 194, 16 Pac. 254. And see State v. Lewis, 10 Kan. 157. "The charge of the court in a crim- inal cause only becomes a part of ' the record by means of a bill of ex- ceptions." State v. Smith, 38 Kan. 194, 16 Pac. 254. In a criminal pros- ecution, "instructions asked for by Blashfield Vol. 1—61 the defendant, and refused by the trial court, cannot become a part of the record unless they are embodied in a bill of exceptions." State v. McClintock, 37 Kan. 40, 14 Pac. 511. Kentucky. Latham v. Lindsay, 33 Ky. L. Eep. 985; Tharp v. Cham- bers, — Ky. — , 128 S. W. 67. Texas. Eev. St. Tex., art., 1318, provides that the charge is to be filed, "and shall constitute a part of the record of the cause, and shall be regarded as excepted to, and sub- ject to revision for errors therein, without the necessity of taking any bill of exceptions." (See Vernon's Sayles' Tex. Civ. St. 1914, art. 2058.) Eedus v. Burnett, 59 Tex. 581; Missouri Pac. E. Co. v. Eabb, 3 Willson, Civ. Cas. Ct. App. § 39. 33— Eaton v. Carruth, 11 Neb k 231. 34 — McAbee v. Wiley, 92 Ark. 245; Castle v. Clark, 45 Ind. App. 192; MacKinnon Boiler & Mach. Co. v. Central Michigan Land Co., 156 Mich. 11; St. Louis, B. & M. Ey. Co. v. Yznaga, — Tex. Civ. App. — , 122 S. W. 267. To authorize a reversal because of the refusal to give a charge, the record must affirmatively show that the • charge was correct and justified by the evidence. Wyatt v. Stewart, 34 Ala. 716. See also, Birmingham Eailway, Light & Power Co. v. Mosely, 164 Ala. 111. The burden of showing reversible 962 Instructions to Jueies. [§429 cordingly, the propriety of giving or refusing instructions will not be considered on appeal unless the record shows that the charge or request was relevant and material to some question in the case, 36 and an. appellate court "will not review erroneous instructions upon mere abstract prin- ciples of law. ' ' 36 The record must show that an exception was taken below 31 at the proper time. 38 And it is held that objections to instructions must be raised on appeal by assignment of error, 39 and only the errors assigned will be considered. 40 So, where the refusal of a request to charge is assigned for error, the record must show a proper formal request. 41 And if a cautionary instruction is requested to counteract improper remarks of counsel in argument, a error in the proceedings below rests upon the party asserting it, i. e., upon the appellant. See Patchell v. Jaqua, 6 Ind. App. 70; Linton v. Allen, 154 Mass. 432; Athens Cotton Oil Co. v. Harper, — Tex. Civ. App. — , 126 S. W. 323; King v. State (Tex. Cr. App.) 21 S. W. 190. See also, §§ 423-433, post, "Presumptions on appeal." 35 — Illinois. Leavitte v. Randolph Co., 85 111. 507; Wilson v. White, 176 111. App. 183. Indiana. Castle v. Clark, 45 Ind. App. 192; Amick v. O'Hara, 6 Blaekf. 258. Iowa. Kelleher v. City of Keokuk, 60 Iowa 473; Murphy v. Johnson, 45 Iowa 57. Texas. Ashworth v. State, 9 Tex. 490; Hill v. Crownover, 4 Tex. 8; Chandler v. State, 2 Tex. 305; Hol- man v. Britton, 2 Tex. 297. Virginia. Valley Mut. Life Ass'n v. Teewalt, 79 Va. 421. Washington. Yelm Jim v. Terri- tory, 1 Wash. T. 63. United States. New Orleans Ins. Ass'n v. Piaggio, 16 Wall. 378, 21 L. Ed. 358. 36 — Yelm Jim v. Territory, 1 'Wash. T. 63. 37 — Indianapolis, B. & W. By. Co. v. Rhodes, 76 111. 285; Toledo, P. & W. Ry. Co. v. Miller, 55 111. 448; Buekmaster v. Cool, 12 111. 74; Keel- ing v. Kuhn, 19 Kan. 441. 38— Love v. Moynehan, 16 111. 277, 63 Am. Dee. 306. See also, §427, ante, " Time of taking exceptions. ' ' 39— Bender v. Peyton, 4 Tex. Civ. App. 57. 40 — Where the bill of exceptions shows that exception was taken to the giving of instructions, the ruling may be assigned for error, though it . does not appear upon what grounds the motion for a new trial was based. "The whole case is put, by the bill of exceptions, on the mis- direction of the court, and that is the only question now properly be- fore us." McClurkin v. Ewing, 42 111. 283. 41 — Thus, where requests for in- structions must be in writing, the bill of exceptions must show that a written request was made. Nick- less v. Pearson, 126 Ind. 477. § 430] Exceptions and Objections — Eeview. 963 refusal to so charge will not be reviewed unless the objec- tionable remarks of counsel are preserved in the bill of exceptions. 42 Where the record showed that the court be- low erred in charging that the jury might take with them into the jury room an account book introduced in evidence, but failed to show that the jury in fact did so, it was held that the record did not show reversible error, as the error was harmless, unless the jury took the book with them into the jury room. 43 § 430. Preserving instructions in record. Instructions which have been excepted to and upon which a party appealing relies for reversal, must be brought up in the bill of exceptions or in the manner authorized. 44 "When the refusal of requested instructions is assigned as error, the instructions refused must be embodied in the bill of exceptions, 45 and where the modification of an in- struction is excepted to, the bill of exceptions must show 42 — Kepperly v. Ramsden, 83 III. 565; Stroup v. Thomas, 140 Mo. App. 354. 430; Hoyt v. Quinn, 20 Mo. App. 72; 43 — First Nat. Bank of Porter Co. Davis v. Hilton, 17 Mo. App. 319; v. Williams, 4 Ind. App. 501. Cadmus v. St. Louis Bridge & Tun- 44 — Alabama. Birmingham Kail- nel Co., 15 Mo. App. 86. way, Light & Power Co. v. Mosely, Nevada. State v. Eover, 11 Nev. 164 Ala. 111. 343; State v. Burns, 8 Nev. 251; Arkansas. McKinley v. Broom, State v. Forsha, 8 Nev. 137. 94 Ark. 147; Cheaney v. State, 36 Tennessee. Pelican Assur. Co. v. Ark. 74; Hicks v. Britt, 21 Ark. 422. American Feed & Grocery Co., 122 California. Freeborn v. Norcross, Tenn. 652. 49 Cal. 313. Wisconsin. Collins v. Breen, 75 Geoigia. Barco v. Taylor, 5 Ga. Wis. 606. App. 372. 45— Pierson v. State, 12 Ala. 149; Indiana. McKinsey v. McKee, State v. Schuessler, 3 Ala. 419; Gill 109 Ind. 209; Helms v. Wayne Agri- v. Skelton, 54 111. 158; Prindeville v. cultural Co., 73 Ind. 325, 38 Am. Rep. People, 42 111. 217; Wilmington Coal 147; Indianapolis & M. Rapid Tran- Min. & Mfg. Co. v. Barr, 2 111. App. sit Co. V. Walsh, 45 Ind. App. 42. 84; Kleinschmidt v. McDermott, 12 Missouri. Montgomery v. Harker, Mont. 309, 30 Pac. 393; Benshaw v. 81 Mo. 63; Greenabaum v. Millsaps, Switzer, 6 Mont. 464, 13 Pac. 127. 77 Mo. 474; Johnson v. Greenleaf, See also, Keeling v. Kuhn, 19 Kan. 73 Mo. 671 ; State v. Shehane, 25 Mo. 441. 964 Instructions to Jukies. [§430 what the modifications were, and also the instruction a? modified. 48 The court cannot judge of the correctness of instructions given, refused or modified without having such instructions or modifications before it, and, as has been seen in a pre- vious section, instructions are not ordinarily a part of the record, and therefore are not before the court unless em : bodied in a bill of exceptions. 47 Where the error com- plained of is one that might be cured by other instructions in the case, all the instructions must be brought up in the record, so that the court may see that the error was not in fact cured; 48 otherwise there can be no reversal. 49 Thus, where the refusal of an instruction is assigned as error, and the record does not purport to contain all the instructions, such refusal cannot be reviewed on appeal, because, nan constat, the instruction may have been refused because already once given. 50 The burden of showing error in such 46— St. Louis, I. M. & S. By. Co. v. Hecht, 38 Ark. 357; Viera v. At- chison, T. & S. P. B. Co., 10 Cal. App. 267, 101 Pac. 690; Burns v. People, 126 111. 285; .Gulliver v. Adams Exp. Co., 38 111. 503; Bal- lanee v. Leonard, 37 111. 43; Boies v. Henney, 32 111. 130; Missouri Pae. By. Co. v. Williams, 75 Tex. 4, 16 Am. St. Bep. 867. • 47 — See § 428, ante, "Necessity of bill of exceptions." "When the bad practice is adopted by the court, of answering the legal propositions submitted by counsel seriatim, and then sep- arately giving what is sometimes called a 'general charge,' and coun- sel take an exception to the answers, and not to the general charge, the bill of exceptions does not put the general charge on the record; but when the answers refer to the general charge, so much of the latter as is thus referred to will come up with the answers, and be considered a part of them." Wiss- ler v. Hershey, 23 Pa. St. 333. 48 — Marshall v. Lewark, 117 Ind. 377; Lake Erie & W. B. Co. v. Car- son, 4 Ind. App. 185; Oregon B. & Nav. Co. v. Galliher, 2 Wash. T. 70, 3 Pac. 615. 49 — Board Com'rs Brown Co. v. Boberts, 22 Kan. 762. "Where all the instructions given to the jury do not appear, there can 'be no reversal merely because it ap- pears that the court instructed the jury to consider all the facts, and render such a verdict as they should deem just and right. ' ' Mitchell v. Tomlinson, 91 Ind. 167. 50 — Illinois. Beavely v. Harris, 239 111. 526; Wilmington Coal Min. & Mfg. Co. v. Barr, 2 111. App. 84. Iowa. Huff v. Aultman, 69 Iowa 71, 58 Am. Bep. 213; State v. Wil- liamson, 68 Iowa 351; State v. Stan- § 430] Exceptions and Objections — Beview. 965 a case can only be sustained by showing either that no instructions were given on the point in question, or that the instructions given- upon such point were- erroneous. 51 So, where the error alleged is the failure of the lower court to properly and fully instruct the jury, all the instructions given must be set out in the record, for the obvious reason that the court cannot otherwise determine whether the instructions covered the case or not. 52 Where, however, the error committed is one that could not have been cured by other instructions in the case, the court may reverse, although all the instructions are not contained in the record. 53 In the United States Supreme Court, the rule has been long established that only so much of the charge as is excepted to should be embodied in the bill of excep- ley, 48 Iowa 221; Moody v. St. Paul & S. C. E. Co., 41 Iowa 284; State v. Nichols, 38 Iowa 110; Chase v. Scott, 33- Iowa 309; Bower v. Stew- art, 30 Iowa 579; State v. Johnson, 19 Iowa 230. Kansas. Bard v. Elston, 31 Kan. 274, 1 Pac. 565; State v. Teissedre, 30 Kan. 210, 476, 2 Pac. 108, 650; Keeling v. Kuhn, 19 Kan. 441; Shepard v. Pratt, 16 Kan. 209; Pa- cific E. Co. v. Brown, 14 Kan. 469; Wolfley v. Eising, 12 Kan. 535; Nor- ton v. Foster, 12 Kan. 44; Ferguson v. Graves, 12 Kan. 39; Da Lee v. Blackburn, 11 Kan. 190; Marshall v. Shibley, 11 Kan. 114; Washington Life Ins. Co. v. Haney, 10 Kan. 525; Morgan v. Chappie, 10 Kan. 216; Wilson v. Fuller, 9 Kan. 176. Maine. Hearn v. Shaw, 72 Me. 187. TVtassachusetts. Linton v. Allen, 154 Mass. 432. Montana. Eobinson v. Helena Light & Eailroad Co., 38 Mont. 222, 99 Pac. 837. 51 — Patchell v. Jaqua, 6 Ind. App, 70; Linton v. Allen, 154 Mass. 434; King v. State (Tex. Cr. App.) 21 S. W. 190. 52 — State v. Hamilton, 32 Iowa 572; State v. Ehea, 25 Kan. 576; Berrenberg v. City of Boston, 137 Mass. 231, 50 Am. Eep. 296n. 53 — "This court will not ordinar- ily reverse on account of erroneous instructions, unless the record con- tains all those given; but where the instructions given contain errors that could not be cured by others, it may be" otherwise. Meyer v. Temme, 72 111. 574. If any instruction given is so far erroneous that any modification thereof properly presenting the law would have been in conflict with it, the error will be ground for rever- sal, although all the instructions are not before the court; but it will be otherwise if there might have been, in another instruction, modifications or limitations such as, with the in- struction complained of, would have correctly presented the law. Bland v. Hixenbaugh, 39 Iowa 532. 966 Instruction's to Jtjbies. [§430 tions, 54 and in some states the practice seems to be the same. 55 It has also been held that, "In a motion for a new trial, if the rule nisi states the charge differently from the charge itself, as written out by the judge, and sent up with the record, the appellate court will be governed by the charge as written" by the judge. 56 § 431. Preserving evidence in record. In a prior section 57 it was stated that the record on appeal must show that the instructions or requests pre- sented for review were relevant and material to the issues involved on the trial of the case. Accordingly, the bill of exceptions must usually show so much of the evidence as the instructions or requests were based upon. 58 And it has 54 — Phoenix Life Ins. Co. v. Bad- din, 120 U. S. 183, 30 L. Ed. 644, citing United, States v. Eindskopf, 105 U. S. (15 Otto) 418, 26 L. Ed. 1131; Zeller's Lessee v. Eckert, 4 How. (U. S.) 289, 11 L. Ed. 979; Stimpson v. Westchester B. Co., .3 How. (U. S.) 553, 11 L. Ed. 722; Gregg v. Sayre's Lessee, 8 Pet. (U. S.) 244, 8 L. Ed. 932; Magniac v. Thompson, 7 Pet. (U. S.) 348, 8 L. Ed. 709; Crane v. Crane, 5 Pet. (U. S.) 190, 8 L. Ed. 92; Carver v. Jack- son, 4 Pet. (U. S.) 1, 7 L. Ed. 761; Evans v. Eaton, 7 Wheat. (U. S.) 356, 5 L. Ed. 472. See also, Conard v. Pacific Ins. Co., 6 Pet. (U. S.) 262, 8 L. Ed. 392; Lincoln v. Claflin, 7 Wall. (U. S.) 132, 19 L. Ed. 106. And this practice is enforced by an express rule of court. See Eule 4 of 1884, 108 U. 8. 574; Eule 4 of 1858, 21 How. (U. S.) vi.; and Eule 38 of 1832, 6 Pet. (U. S.) iv, in 56 Law. Ed. Appendix V. See also, Eule 10 of Circuit Court of Appeals, 150 Fed. XXVII. 55 — The bill of exceptions should merely state the rulings upon points of' law made at the trial, and not set out the charge at length. Burt v. Merchants' Ins. Co., 115 Mass. 16, quoting with approval remarks of Mr. Justice Story to same effect in Evans v. Eaton, 7 Wheat. (U. S.) 356, 426, 5 L. Ed. 472, 490: "The insertion in the bill of exceptions of the general charge of the court to which no exceptions were taken, cannot posribly injure the appellant, It furnishes no ground for re versal. " Hollingsworth v. Chap man, 54 Ala. 8, citing Grace v, McKissack, 49 Ala. 163. 56 — Alston v. Grantham, 26 Ga. 374. 57— See § 429, ante, "Sufficiency of record on appeal in general." 58 — Alabama. Koosa & Co. v. Warten, 158 Ala. 496; Hill v. State, 43 Ala. 335; Morris v. State, 25 Ala. 57; Jones v. Stewart, 19 Ala. 701; Leverett's Heirs v. Carlisle, 19 Ala. 80; Brazier v. Burt, 18 Ala. 201; Dent v. Portwood, 17 Ala. 242; Tharp v. State, 15 Ala. 749; King v. § 431] Exceptions and Objections — Beview. 967 been held that where the record does not purport to contain all the evidence, the correctness of the court's action in giving or refusing instructions will not be considered on appeal, and error therein is not available as a ground for reversal. 59 Where none of the evidence appears in the record, and there is no statement of what it tended to prove, or that it raised the questions on which instructions Crocheron, 14 Ala. 822; Peden v. Moore, 1 Stew. & P. 71, 21 Am. Deo. 649. Colorado. Greenlaw Lumber & Timber Co. v. Chambers, 46 Colo. 587, 105 Pac. 1091. Florida. Blige v. State, 20 Fla. 742, 51 Am. Rep. 628; Stewart v. Mills, 18 Fla. 57; Sherman v. State, 17 Fla. 888; Southern Exp. Co. v. Van Meter, 17 Fla. 783, 35 Am. Eep. 107; McKay v. Friebele, 8 Fla. 21. Illinois. Evans v.'Lohr, 3 111. 511; Patrick v. McAleenan Boiler Co., 136 111. App. 563. Indiana. Hoffbauer v. Morgan, 172 Ind. 273; State v. Bartlett, 9 Ind. 569. Iowa. Monson v. Carlstrom, 141 Iowa 183; Wilcox v. McCune, 21 Iowa 294; Potter v. Wooster, 10 Iowa 334. Massachusetts. Whitcomb Whitcomb, 205 Mass. 310, 18 Ann Cas. 410; Whitehead & A. Mach Co. v. Ryder, 139 Mass. 366 O'Neil v. Wolffsohn, 137 Mass. 134 Horton v. Cooley, 135 Mass. 589 Salomon v. Hathaway, 126 Mass 482. Missouri. Phelps v. Conqueror Zinc Co., 218 Mo. 572. Texas. Holman v. Britton, 2 Tex. 297. United States. Spreckels v. Brown, 212 U. S. 208, 53 L. Ed. 476; Phoenix Life Ins. Co. .v. Eaddin, 120 U. S. 183, 30 L. Ed. 644; Jones v. Buckell, 104 U. S. (14 Otto) 554, 26 L. Ed. 842; Worth- ington v. Mason, 101 U. S. (11 Otto) 149, 25 L. Ed. 848; Vasse v. Smith, 6 Cranch 226, 3 L. Ed. 207; South- western Virginia Improvement Co. v. Frari, 7 C. C. A. 149, 58 Fed. 171. 59 — Alabama. Tracey, Irwine & Co. v. Warren, 45 Ala. 408; Green v. Tims, 16 Ala. 541; Brewer v. 'Strong's Ex'rs, 10 Ala. 961, 44 Am. Dee. 514. Illinois. Love v. Moynehan, . 16 111. 277, 63 Am. Dec. 306. Indiana. Ward v. State, 52 Ind. 454. Iowa. State v. Hamilton, 32 Iowa 572; Preston v. Walker, 26 Iowa 205; Nollen v. Wisner, 11 Iowa 190. Kansas. Board Com'fs Allen Co. v. Boyd, 31 Kan. 765, 3 Pac. 523; Hymes v. Jungren, 8 Kan. 392. Texas. Fulgham v. Bendy, 23 Tex. 64; Hutchins v. Wade, 20 Tex. 7; McMullen v. Kelso, 4 Tex. 235; Chandler v. State, 2 Tex. 305; Hol- man v. Britton, 2 Tex. 297. West Virginia. Powell v. Terry's Adm'r, 77 Va. 250. A party seeking the revision of a general affirmative charge must either show that the evidence was conflicting, and the charge an inva- sion of the province of the jury, or he must set out all the evidence, that the appellate court may be able to determine whether the charge is 968 Instructions to Juries. [§431 are based, the appellate court cannot, as a general rule, determine whether there was error in the rulings of the court as to the instructions or not. 60 Where the charge is objected to on the ground of irrelevancy, all the evidence must be brought up by the bill of exceptions. 61 And a judg- ment will not be reversed for a mere failure to instruct, in the absence of any evidence in the record showing the necessity and propriety of an instruction in regard to the omitted particulars. 62 It has been held, however, that where the record contains no evidence or statement of facts, the instructions are to be regarded on appeal as abstract propositions, unconnected with the case or the issues, and not affecting the correctness of the judgment. 63 In some cases error in regard to instructions is available authorized , by it. Tracey, Irwine & Co. v. Warren, 45 Ala. 408; Griffin v. Bland, 43 Ala. 542; Owens v. Cal- laway, 42 Ala. 301; Fleming v. Us- sery, 30 Ala. 282; Doe d. School Com'rs v. Godwin, 30 Ala. 242; Barnes v. Mobley, 21 Ala. 232; Gaines v. Harvin, 19 Ala. 491. 60 — Leavitte v. Randolph County, 85 111. 507; Cleveland, C, C. & St. L. Ey. Co. v. Rudy, — Ind. App. — , 87 N. E. 555; State Ins. Co. v. Curry, 44 Kan. 741, 25 Pae. 221; Gray v. City of Emporia, 43 Kan. 704, 23 Pac. 944; Stetler v. King, 43 Kan. 316, 23 Pae. 558; State v. English, 34, Kan. 629, 9 Pac. 761; Town of Leroy v. McConnell, 8 Kan. 273. As instructions, abstractly correct, may be properly refused if not ap- plicable under the evidence, a party complaining of the refusal to give an instruction must bring before the court on appeal the evidence show- ing such applicability. Chase v. Scott, 33 Iowa- 309; Wilcox v. Mc- Cune, 21 Iowa 294; Paden v. Grif- fith, 12 Iowa 272; Wisner v. Brady, 11 Iowa 248; Frost v. Inman, 10 Iowa 587; Hanan v. Hale, 7 Iowa 153; Gover v. Dill, 3 Iowa 337; Cutter v. Fanning, 2 Iowa 580; Youngerman v. Pugh, — Iowa — , 125 N. W. 321; Auld v. Kimberlin, 7 Kan. 601. 61 — Muirhead v. Muirhead, 8 Smedes & M. (Miss.) 211; Law v. Merrills, 6 Wend. (N. Y.) 268; United States v. Morgan, 11 How. (U. S.) 159, 13 L. Ed. 646; Zeller's Lessee v. Eckert, 4 How. (U. S.) 297, 11 L. Ed. 983. 62 — Hedrick v. Smith, 77 Tex. 608. "Where the error complained of is that the court failed to give a special and separate instruction upon a single and collateral fact disclosed by the testimony, the en- tire testimony should ordinarily be presented, so that the court may see that the fact is of such importance as to require special and separate notice." Head v. Dyson, 31 Kan. 74, 1 Pac. 258. 63 — Hollingsworth v. Holshousen, 17 Tex. 41; Salinas v. Wright, 11 Tex. 572; Holman v. Britton, 2 Tex. 297. § 432] Exceptions and Objections — Review. 969 on appeal, notwithstanding that the record does not con- tain all the evidence. Thus the error may warrant reversal though all the evidence is not contained in the record, where the instructions are erroneous under any supposable state of facts, 64 where they are based on incompetent evidence, 05 or where the pleadings render them necessarily erroneous. 60 It has also been held that where no question is made on the evidence, it is sufficient to secure a review of instruc- tions to state in the bill of exceptions that the evidence established or tended to prove certain facts, without setting it out in extenso. 67 § 432. Presumption against error on appeal. The rules as to presumption on appeal are often merely a statement as to the rules concerning what the record must contain, in order to authorize a review of the instructions given or refused, already referred to. 68 Thus the rule that the burden to show the existence of reversible error on the record is on the appellant is some- times stated by saying that there is a presumption against error, and in the absence of an affirmative showing to the contrary, it will be presumed that the action of the trial court was correct under the circumstances. 64— Tharp v. State, 15 Ala. 749; Fry, 6 Ind. 371; Murphy v. Johnson, Peden v. Moore, 1 Stew. & P. (Ala.) 45 Iowa 57; Lower v. Marceline Coal 71; Eowland v. Ladiga, 9 Port. & Min. Co., 142 Mo. App. 351. (Ala.) 488; Vandalia Coal Co. v. 65^-Lane v. Miller, 17 Ind. 58. Yemm, 175 Ind. 524; Hoffbauer 66 — Duggins v. Watson, 15 Ark. v. Morgan, 172 Ind. 273; Palmer v. 118, 60 Am. Dec. 560; Mason v. Wright, 58 Ind. 486; Blizzard v. MeCampbell, 2 Ark. 506; Robins v. Bross, 56 Ind. 74; Smathers v. State, Fowler, 2 Ark. 143; Pfeuffer v. 46 Ind. 447; Barlow v. Thompson, 46 Maltby, 54 Tex. 454, 38 Am. Rep. Ind. 384; Woodruff v. Garner, 27 631. Ind. 4, 89 Am. Dec. 477n; Griffin v. 67 — Leavitte v. Randolph County, Templeton, 17 Ind. 234; Ruffing v. 85 111. 507; Schmidt v. Chicago & N. Tilton, 12 Ind. 259; Jolly v. Terre W. By. Co., 83 111. 405; Pennsylvania Haute Drawbridge Co., 9 Ind. 417; Co. v. Swan, 37 111. App. 85; EZelle- Woolley v. State, 8 Ind. 502; New her v. City of Keokuk, 60 Iowa 473; Albany & S. B. Co. v. Callow, 8 Ind. Mudge v. Agnew, 56 Iowa 297. 471 ; Eward v. Lawrenceburgh & 68 — See § 430, ante. IT. M. R. Co., 7 Ind. 711; Murray v. 970 Instructions to Jueies. [§432 It will .generally be presumed on appeal that the trial court gave all the instructions which were required by the case, and it will also be presumed that such instructions were correct,, unless the record .shows the contrary, 69 al- 69 — Alabama. Davis v. Badders, 95 Ala. 348; Louisville & N. E. Co. v. Orr, 94 Ala. 602; Cobb v. Malone, 87 Ala. 514; Hyde v., Adams,' 80 Ala. Ill; Myatts v. Bell, 41 Ala. 222; English's Ex'r v. McNair's Adm'rs, 34 Ala. 40. Arkansas. McAbee v. Wiley, 92 Ark. 245; Crisman v. McDonald, 28 Ark. 8. California. Harris v. Barnhart, 97 Cal. 546, 32 Pac. 589; Bichardson v. City of Eureka, 96 Cal. 443, 31 Pae. 458; People v. Von, 78 Cal. 1, 20 Pae. 35; Carpenter v. Ewing, 76 Cal. 487, 18 Pac. 432; California Cent. By. Co. v. Hooper, 76 Cal. 404, 18 Pac. 599; Shepherd v. Jones, 71 Cal. 223, 16 Pae. 711; People v. Bourke, 66 Cal. 455, 6 Pac. 89; Peo- ple v. Gilbert, 60 Cal. 108; People v. Smith, 57 Cal. 130; Hinkle v. San Francisco & N. P. B. Co., 55 Cal. 627; Brown v. Kentfield, 50 Cal. 129; Baldwin v. Bornheimer, 48 Cal. 434; People v. Strong, 46 Cal. 303;, People v. Donahue, 45 Cal. 321; People v. Padillia, 42 Cal. 535; People v. Tor- res, 38 Cal. 141; People v. Dick, 34 Cal. 663; People v. King, 27 Cal. 507, 87 Am. Dee. 95; Beckman v. MeKay, 14 Cal. 250. Colorado. Klink v. People, 16 Colo. 467, 27 Pac. 1062; Halsey, v. Darling, 13 Colo. 1, 21 Pac. 913. District of Columbia. Bunyea v. Metropolitan E. Co., 8 Mackey 76. Florida. Sammis v. Wightman, 31 Fla. 10; Gibson v. State, 26 Fla. 109. Georgia. Pool v. Gramling, 88 Ga. 653; Chattahoochee Brick Co. v. Sullivan, 86 Ga. 50; Christian v. Wahl, 83 Ga. 395; Wilson v. Atlanta & C. Ey. Co., 82 Ga. 386; Carson v. State, 80 Ga. 170. Illinois. Chicago, M. & St. P. Ey. Co. v. Yando, 127 HI. 214; Meyer v. Temme, 72 III. 574; Hahn v. St. Clair Sav. & Ins. Co., 50 111. 526; De Clerq v. Mungin, 46 HI. 112; City of Abingdon v. Meadows, 28 111. App. 442; Wilmington Coal Min. & Mfg. Co. v. Barr, 2 111. App. 84. Indiana. Stevens v. Templeton, 174 Ind. 129; Hilker v. Kelley, 130 Ind. 356, 15 L. E. A. 622; Lehman v. Hawks, 121 Ind. 541; Marshall v. Lewark, 117 Ind. 377; Lower v. Franks, 115 Ind. 334; Silver v. Parr, 115 Ind. 113; Cincinnati, H. & I. E. Co. v. Clifford, 113 Ind. 460; Joseph v. Mather, 110 Ind. 114; Ford v. Ford, 110 Ind. 89; Frank v. Grimes,' 105 Ind. 346; Unruh v. State, 105 Ind. 117; Johns v. State, 104 Ind. 557; Elkhart Mut. Aid, Benevolent & Belief Ass'n v. Houghton, 103 Ind. 286, 53 Am. Eep. 514; Kennedy v. Anderson, 98 Ind. 151; Stockton v. Stockton, 73 Ind. 510; Stull v. Howard, 26 Ind. 456; Buntin v. Weddle, 20 Ind. 449; Cincinnati, L. & A. Electric St. E. Co. v. Cook, 44 Ind. App. 303^ Patehell v. Jaqua, 6 Ind. App. 70; Walter v. TJhl, 3 Ind. App. 219; Gould v. O'Neal, 1 Ind. App. 144. Iowa. Munn v. Shannon, 86 Iowa 363; Leiber v. Chicago, M. & St. P. Ey. Co., 84 Iowa 97; Johnson y. Knudtson, 82 Iowa 762; State v. Moore, 77 Iowa 449; Fernbach v. § 432] Exceptions and Objections — Review. 971 though it is sometimes held that this rule applies only to City of Waterloo, 76 Iowa 598; State v. Wyatt, 76 Iowa 328; War- basse v. Card, 74 Iowa 306; State v. Broadwell, 73 Iowa 765; Muir v. Miller, 72 Iowa 585; Davis v. Wal- ter, 70 Iowa 465; State v. Brewer, 70 Iowa 384; Armstrong v. Killen, 70 Iowa 51; Huff v. Aultman, 69 Iowa 71, 58 Am. Rep. 213; State v. Hunter, 68 Iowa 447; State v. Wil- liamson, 68 Iowa 351; Holland v. Union County, 68 Iowa 56; State v. Hemrick, 62 Iowa 414; Wood v. Porter, 56 Iowa 161; McMillan v. Burlington & M. E. Co., 46 Iowa 231; Blackburn v. Powers, 40 Iowa 681; Eice v. City of Des Moines, 40 Iowa 638; Wallace v. Eobb, 37 Iowa 192; Gantz v. Clark, 31 Iowa 254; Have- lick v. Havelick, 18 Iowa 575; Bridgman v. Steamboat Emily, 18 Iowa 509; Abrams v. Foshee, 3 Iowa 274; Mainer v. Eeynolds, 4 Greene 187. Kansas. Wilson v. Fuller, 9 Kan. 176; Pacific E. Co. v. Nash, 7 Kan. 280; Linton v. Housh, 4 Kan. 536; Educational Ass'n v. Hitchcock, 4 Kan. 36. Kentucky. Licking Boiling Mill Co. v. Fischer, 88 Ky. 176; Hunt v. Kemper, 10 Ky. L. Eep. 593. Louisiana*. State v. Bird, 38 La. Ann. 497. Maryland. Eegester v. Medcalf, 71 Md. 528; Baltimore & O. E. Co. v. Eesley, 14 Md. 424; Burtles v. State, 4 Md. 273; Bullitt v. Mus- grave, 3 Gill 31; Whiteford v. Burek- myer, 1 Gill 127. Massachusetts. McGourty v. De Marco, 200 Mass. 57; Xinton v. Allen, 154 Mass. 432; Com. v. Ford, 146 Mass. 131; Khron v. Brock, 144 Mass. 516. Michigan. Stanton v. Estey Mfg. Co., 90 Mich. 12; Kimball v. Ma- comber, 50 Mich. 362; Kline v. Kline, 49 Mich. 419; Hart v. New- ton, 48 Mich. 401; Brown v. Dunckel, 46 Mich. 29; People v. Niles, 44 Mich. 606; Paine v. Eingold, 43 Mich. 341; Farmers' Mut. Fire Ins. Co. v. Gargett, 42 Mich. 289; Cum- mins v. People, 42 Mich. 142; Hall v. Johnson, 41 Mich. 286; Fowler v. Gilbert, 38 Mich. 292; Wicks v. Boss, 37 Mich. 464; Hayes v. Homer, 36 Mich. 374; Herbstreit v. Beckwith, 35 Mich. 93; Greenlee v. Lowing, 35 Mich. 63; Curley v. Wyman, 34 Mich. 353; English v. Caldwell, 30 Mich. 362; Tupper v. Kilduff, 26 Mjch. 394; Cook v. Hopper, 23 Mich. 511; Taff v. Hosmer, 14 Mich. 309; People v. McKinney, 10 Mich. 54. Minnesota. Erd v. City of St. Paul, 22 Minn. 443; Siebert v. Leon- ard, 21 Minn. 442; Stearns v. John- son, 17 Minn. 142 (Gil. 116) ; Cogley v. Cushman, 16 Minn. 397 (Gil. 354) ; Desnoyer v. L 'Hereux, 1 Minn. 17 (Gil. 1). Mississippi. Kellum v. State, 64 Miss. 226; Strickland v. Hudson, 55 Miss. 235. Missouri. State v. Miller, 100 Mo. 606; State v. Mallon, 75 Mo. 355; State v. Brown, 75 Mo. 317; Cress v. Blodgett, 64 Mo. 449; McLain v. Winchester, 17 Mo. 49; Meade v. Weed, 45 Mo. App. 385; Whiting v. City of Kansas, 39 Mo. App. 259; Campbell v. Buller, 32 Mo. App. 646; Wilkerson v. Corrigan Consol. St. Ey. Co., 26 Mo. App. 144; Fink v. Began, 22 Mo. App. 475; Estes v. Fry, 22 Mo. App. 80; Simpson v. Schulte, 21 Mo. App. 639; Field v. 972 Instructions to Juries. [§432 an oral charge which will be presumed correct, whereas a different rule applies to written instructions. 70 ' ' Where the error alleged is the giving of an' instruction, it must appear that such instruction is so full and com- plete and so manifestly wrong that the whole law applicable to the case could not have been correctly presented to the jury without a contradiction of that given, before a reversal will be ordered." 71 "Where the record contains enough to show error but not enough to show affirmatively that such error was corrected or- cured in any manner, the presumption against error is rebutted or does not apply. 72 Crecelius, 20 Mo. App. 302; Tatum v. Anderson, 8 Mo. App. 574. Montana. Territory v. Scott, 7 Mont. 407, 17 Pac. 627. Nebraska. Malcom v. Hanson, 32 Neb. 52; Willis v. State, 27 Neb. 98; Birdsall v. Carter, 16 Neb. 422. New Hampshire. Conway v. Town of Jefferson, 46 N. H. 521. New Mexico. Lewis v. Baca, 5 N. M. 289. New York. Vosburgh v. Teator, 32 N. Y. 561; New York Marine Bank v. Clements, 6 Bosw. 166; Winterson v. Eighth Ave. B. Co., 2 Hilt. 389; Eumsey v. New York & N. E. B. Co., 63 Hun 200; Flannery v. Van Tassell, 56 Hun 647; Crouse v. Owens, 49 Hun 610; Flannery v. Van Tassell, 32 N. Y. St. 350. North Carolina. State v. Dicker- son, 98 N. C. 708; Willey v. Norfolk Southern B. Co., 96 N. C. 408; State v. Nipper, 95 N. C. 653; State v. Craige, 89 N. C. 475, 45 Am. Bep. 698; Chasteen v. Martin, 84 N. C. 391; Cowles v. Bichmond & D. B. Co., 84 N. C. 309, 37 Am. Bep. 620; Honeycut v. Angel, 20 N. C. 306. Oregon. Coffin v. Taylor, 16 Ore. 375, 18 Pac. 638. Rhode Island. Heaton v. Manhat- tan Fire Ins. Co., 7 E. I. 502. Texas. Seal v. State, 28 Tex. 491; King v. State, (Tex. Cr. App.), 21 S. W. 190. West Virginia. Kinsley v. Monon- galia County Court, 31 W. Va. 464; Hood v. Maxwell, 1 W. Va. 219. Wisconsin. Benton v. City of Milwaukee, 50 Wis. 368; White v. Goodrich Transp. Co., 46 Wis. 493 Darling v. Conklin, 42 Wis. 478 State v. Babcock, 42 Wis. 138 Brabbits v. Chicago & N. W. By. Co., 38 Wis. 289; Killips v. Putnam Eire Ins. Co., 28 Wis. 472, 9 Am. Bep. 506; Kelley v. Kelley, 20 Wis. 443; Parish v. Eager, 15 Wis. 532; Graves v. State, 12 Wis. 591; O'Mal- ley v. Dorn, "7 Wis. 236, 73 Am. Dec. 403n; Townsends v. Bacine Bank, 7 Wis. 185. United States. Ames v. Quimby, 106 V. S. (16 Otto) 342, 27 L. Ed. 100; Atchison, T. & S. F. B. Co. v. Howard, 1 C. C. A. 229, 49 Fed. 206. 70— Newton v. State, 3 Tex. Cr. App. 245. 71 — Morgan v. Chappie, 10 Kan. 216. 72 — Thus, under a rule that it is [§ 432 Exceptions and Objections — Review. 973 Where the record shows an objection to improper state- ments of counsel in argument to the jury, but not whether the court corrected the statements or hot, it will be pre- sumed that the court instructed the jury to disregard them. 73 It will be presumed that the parties had narrowed the issues to the questions stated by the court, 74 and objec- tion to generality of instruction applicable to some of the issues, as to burden of proof, not being made, it is presumed, on appeal, to have been applied to proper issues only. 75 ' ' "Where the issue is distinctly set forth in the pleadings, and the evidence conforms to it, and the record does not show that the plaintiff took any ground inconsistent with the proofs, it is not to be assumed that the jury applied the language of the charge so as to make it cover anything foreign to the issue. " 76 The presumptions are also in favor of the proper consideration of evidence by the jury, 77 and if the charge contains an abstract proposition of law, hav- ing no particular reference to the evidence submitted, it will be presumed, although the language is general, that the jury properly applied it to the case before them. 78 fatal error, in a criminal case, to have tampered with certain deposi- give oral instructions to the jury tions excluded by the court, but in- without the consent of the defend- ^advertently taken out upon retiring, ant, and the record shows that oral Phrenix Ins. Co. v. Underwood, 12 instructions were given, but fails to Heisk. (Tenn.) 424. Where evidence show the consent of defendant, the was admitted upon condition that judgment will be reversed. Terri- the party introducing it would prove tory v. Gertrude, 1 Ariz. 74, 25 Pac. another material and connected fact, 473; People v. Trim, 37 Cal. 274; which he was unable to prove, the People v. Ah Fong, 12 Cal. 345. jury should disregard such evidence; 73 — Fredericks v. Judah, 73 Cal. and, though they were not expressly 604, 15 Pac. 305. instructed so to do, yet, as the pro- 74 — Legget v. Harding, 10 Ind. ceedings were had in their presence, 414; Cory v. Silcox, 6 Ind. 39. the court will presume they did dis- 75 — Rogers v. Wallace, 10 Ore. regard it. Inhabitants of Bangor v. 3*87. Inhabitants of Brunswick, 30 Me. 76 — Pettibone v. Maclem, 45 Mich. 398. 381. ' 78— People v. Reynolds, 2 Mich. 77 — A jury will be presumed to 422. have done their duty, and not to 974 Instructions to Jubies. [§432 Where the evidence is not before the supreme court, it will be presumed in favor of the instruction that it was adapted to the evidence given on the trial and was correct. 79 An affirmative charge correct as a legal proposition under any state of facts that could have existed in the case will be presumed to have been authorized by the evidence, unless the contrary appears. 80 This presumption is rebutted, how- 79 — Alabama. Southern Hard- ware & Supply Co. v. Standard Equipment Co., 165 Ala. 582; Tempe v. State, 40 Ala. 350; McLemore v. Nuckolls, 37 Ala. 662; Nesbitt v. Pearson's Adm'rs, 33 Ala. 668; Mor- ris v. State, 25 Ala. 57; McElhaney v. State, 24 Ala. 71; Jones v. Stew- art, 19 Ala. 701; Leverett's Heirs v. Carlisle, 19 Ala. 80; Moore v. State, 18 Ala. 532; Wilson v. Calvert, 18 Ala. 274. Arkansas. Bach v. Cook, 21 Ark. 571; Duggins v. Watson, 15 Ark. 118; Pogue v. Joyner, 7 Ark. 463. Indiana. Muncie & P. Traction Co. v. Hall, 173 Ind. 292; Beller v. State, 90 Ind. 448; Dennerline v. Gable, 73 Ind. 210; Pate v. Tait, 72 Ind. 450; City of Indian- apolis v. Scott, 72 Ind. 196; Audleur v. Kuffel, 71 Ind. 543; Shinn v. State, 68 Ind. 423; Higbee v. Moore, 66 Ind. 263; Wilkinson v. Applegate, 64 Ind. 98; Merrick v. State, 63 Ind. 327; Wade v. Gup- pinger, 60 Ind. 376; Lewellen v. Gar- rett, 58 Ind. 442, 26 Am. Rep. 74; Sehoonover v. Irwin, 58 Ind. 287; Boyd v. Wade, 58- Ind. 138; Aurora Fire Ins. Co. v. Johnson, 46 Ind. 315; Columbus, C. & I. C. By. Co. v. Powell, 40 Ind. 37; Stull v. How- ard, 26 Ind. 456; List v. Kortepeter, 26 Ind. 27; Cleveland, C, C. & St. L. E. Co. v. Harvey, 45 Ind. App. 153. Iowa. State v. Wyatt, 76 Iowa' 328; Laughlin v. Main, 63 Iowa 580; Boby v. Appanoose County, 63 Iowa 113; State v. Hemrick, 62 Iowa 414; State v. Bice, 56 Iowa 431; Blackburn v. Powers, 40 Iowa 681; Bice v. City of Des Moines, 40 Iowa 638; Mcintosh v. Kilbourne, 37 Iowa 420; Wallace v. Eobb, 37 Iowa 192; Gantz v. Clark, 31 Iowa 254; Bridg- man v. Steamboat Emily, 18 Iowa 509; State v. Postlewait, 14 Iowa 446. Mississippi. Kellum v. State, 64 Miss. 226; Strickland v. Hudson, 55 Miss. 235. Nevada. State v. Loveless, 17 Nev. 424, 30 Pac. 1080. New Hampshire. Bowell v. Chase, 61 N. H. 135. Ohio. Cresinger v. Welch 's Lessee, 15 Ohio 156, 45 Am. Dec. 565. Pennsylvania. Gifford v. Gifford, 27 Pa. St. 202. United States. Wiggins v. Burk- ham, 10 Wall. 129, 19 L. Ed. 884. 80— Tempe v. State, 40 Ala. 350; Fleming v. Ussery, 30 Ala. 282; Doe d. School Com'rs v. Godwin, 30 Ala. 242; Morris v. State, 25 Ala. 57. Instructions, not abstractly wrong, will be presumed applicable if the evidence is not in the record. Campbell v. Peterman, 56 Ind. 428; Newby v. Bogers, 54 Ind. 193; Mc- Kinney v. Shaw & Lippencott Mfg. Co., 51 Ind. 219; Overlin v. Kronen- berger, 50 Ind. 365. "A charge instructing the jury §432] Exceptions and Objections — Bevtew. 975 ever, where the. record purports to contain all the evi- dence, 81 or where it is apparent that the instructions would be improper under any possible state of the evidence under the pleadings. 82 The jury will be presumed to have con- sidered the instruction as a whole, and therefore, if correct as a whole, no error is committed. 83 Where the charge makes reference to preceding parts of the charge, it will be presumed that the jury considered such preceding parts. 84 But where a charge is of excessive length, or involved, the presumption that the jury considered it as a whole may be that the defendant is liable if the plaintiff's colt was killed 'under the circumstances' testified to by him will be presumed to have been cor- rectly given, when there is nothing in the bill of exceptions showing what the ' circumstances ' were. ' ' South & North A. E. Co. v. Brown, 53 Ala. 651. Where it is assumed that agency has been established, such agency being material, such assifmption will be presumed correct, where evidence is not in the record. Bowen v. Pol- lard, 71 Ind. 177. 81 — Where, upon review by the appellate court, "the bill of excep- tions purports to contain all the evi- dence, an instruction not supported by the evidence thus preserved will not be presumed to have been prop- erly given." St. Louis Drug Co. v. Dart, 7 Mo. App. 590. 82 — Indiana. Vandalia Coal Co. v. Yemm, 175 Ind. 524; Cincinnati, H. & I. E. Co. v. Clifford, 113 Ind. 460; Cates v. Bales, 78 Ind. 288. Iowa. Warbasse v. Card, 74 Iowa 306; State v. Broadwell, 73 Iowa 765; McMillan v. Burlington & M. E. Co., 46 Iowa 231. Kentucky. Eobards v. Wolfe, 1 Dana 156. Mississippi. Kellum v. State, 64 Miss. 226. Nebraska. Willis v. State, 27 Neb. Nevada. State v. Loveless, 17 Nev. 424, 30 Pac. 1080. Oklahoma. Fisher v. United States, 1 Okla. 252, 31 Pac. 195. 83 — Arkansas. Ward v. Black- wood, 48 Ark. 396. Florida. Andrews v. State, 21 Fla. 598. Indiana. Pennsylvania Co. v. Mc- Cormack, 131 Ind. 250; Boyle v. State, 105 Ind. 469, 55 Am. Eep. 218. Iowa. Davis v. Walter, 70 Iowa 467; State v. Williams, 70 Iowa 52; Gee v. Moss, 68 Iowa 318; State v. Mahan, 68 Iowa 304. Michigan. Hart v. Newton, 48 Mich. 401. South Carolina. Carolina, C. G. & C. Ey. Co. v. Seigler, 24 S. C. 125. Texas. Missouri Pac. Ey. Co. v. James (Tex.), 10 S. W. 332; Conti nental Ins. Co. v. Pruitt, 65 Tex, 126; Hodges v. State, 22 Tex. App 415; St. Louis Southwestern E. Co of Texas v. Holt, 57 Tex. Civ. App, 19. 84 — Missouri Pac. Ey. Co. James (Tex.), 10 S. W. 332. 976 Instructions to Juries. [§432 rebutted. 85 It will be presumed that instructions were prop- erly given, 86 and that statements in the instructions are true. 87 The statements of a charge to the jury not corrected by the judge on a settlement of the case by him are assumed to be correct. 88 "Where the record fails to show upon what point the jury desired further instructions, the answer of the court will be presumed to have been satisfactory and sufficient. 89 It will not, however, be presumed that instructions asked at a former trial were requested at a subsequent trial ; 90 and it will not be presumed that the jury heard or were controlled by remarks of the court not addressed to them. 91 "Where the bill of exceptions shows that an instruction was refused because not presented within the time required by the rule of practice in such court, — that is, before the commencement of the closing address to the jury, — in the 85 — United States v. Hamilton, 4 Mackey (D. C.) 446; Louisville, N. A. & C. Ry. Co. v. Jones, 108 Ind. 551; Town of Rushville v. Adams, 107 Ind. 475, 57 Am. Rep. 124; Con- rad v. Kinzie, 105 Ind. 281; Louis- ville, N. A. & C. Ry. Co. v. Gran- tham, 104 Ind. 353; Yocum v. Town of Trenton, 20 Mo. App. 489; State v. True, 20 Mo. App. 176, 2 Western Rep. 602; Kennedy v. Klein, 19 Mo. App. 15; Cumming v. Brooklyn City R. Co., 104 N. Y. 669. 86 — In a criminal case, it will be presumed, in support of the judg- ment, unless the record shows the contrary, that further instructions, given after the retirement of the jury, were given in the presence of counsel. Pearce v. Com., 19 Ky. L. Rep. 782.. So it will be presumed that the accused was present. State v. Miller, 100 Mo. 606. 87 — All statements of fact in in- structions given are presumed, prima facie, to be true. Wilson v. Atlanta & C. Ry. Co., 82 Ga! 386; Carson v. State, 80 Ga. 170; Stanton v. Bstey Mfg. Co., 90 Mich. 12. 88— State v. Harden, 11 S. C. 366. A palpably erroneous instruction appearing in the record will not be presumed to be a mere mistake of the clerk who made the transcript. Stott v. Smith, 70 Ind. 298. 89 — Herlstreit v. Beckwith, 35 Mich. 92. 90— McAlpin v. Ziller, 17 Tex. 508. In Wragge v. South Carolina & G. R. Co., 47 S. C. 105, 33 L. R. A. 191, 58 Am. St. Rep. 870, it was said that it would be assumed that re- quests were submitted in proper form, in the absence of objection on that ground. 91 — Fraim v. National Fire Ins. Co., 170 Pa. 151, 50 Am. St. Rep. 753. § 432] Exceptions and Objections — Review. 977 absence of any showing to the contrary in the bill of excep- tions, it will be presumed there was such a rule of court, in writing, duly published and spread upon the records, and that the instruction was therefore properly refused. ' ' 92 It will be presumed that the jury were capable of under- standing and that they did understand the charge cor- rectly. 93 If the legal definition of a word or phrase is given, and such word or phrase is used in the questions submitted and answered, it will be presumed, on appeal, that it was used by the court and jury with the meaning indicated by the definition. 94 Where the court's charge is susceptible of two interpretations, one of which makes it erroneous, and the other makes it in accordance with law, it will be presumed that the jury, in the light of the whole charge, understood it in the latter sense, 95 especially where no objec- tion is made to the charge in the trial court. 96 It cannot be assumed as a question of law that the jury understood an instruction given by the court in a sense dif- ferent from that in which it is commonly understood by those outside the jury box. 97 The jury will be presumed to have correctly understood the terms "wilfully" and "maliciously," used in the instructions without definition, where they were used' in their ordinary, sense, and the evi- dence was clear, as it will be presumed to be when it is not all contained in the bill of exceptions. 98 Where a- judge 92 — Illinois Cent. E. Co. v. Has- Minnesota. Erd v. City of St. kins, 115 111. 300. Paul, 22 Minn. 443; Siebert v. Leon- 93 — California. People v. Bagnell, ard, 21 Minn. 442. 31 Cal. 409. Texas. Ft. Worth & D. C. Ey. Illinois.- Massachusetts Mut. Life Co. v. Greathouse, 82 Tex. 104; Ins. Co. v. Robinson, 98 111. 324; Brunswig v. White, 70 Tex. .504. Gleason v. M. P. Byrne Const. Co., 94 — Mooney v. Olsen, 22 Kan. 69. 178 111. App. 359. 95— Davis v. State, 25 Ohio St. Indiana. Louisville, N. A. & C. 369. Ey. Co. v. Palvey, 104 Ind. 409; 96— Erd v. City of St. Paul, 22 Union Mut. Life Ins. Co. v. Buch- Minn. 443; Siebert v. Leonard, 21 anan, 100 Ind. 63; Browning v. Minn. 442. Hight, 78 Ind. 257. 97— People v. Welch, 49 Cal. 174. Michigan. Pray v. Cadwell, 50 98— State v. Harkins, 100 Mo. Mich. 222. 666. Blashfield Vol. 1—62 978 Instructions to Juries. §432] told the jury that there was nothing said concerning a par- ticular item, overlooking the fact that there was evidence given regarding such item, it will be assumed, notwithstand- ing, that the jury had that evidence in mind when consid- ering the verdict." It will also be presumed that instructions were given at the proper time, 1 even though no charge appears in the record; 2 and the presumptions are also in favor of com- pliance with statutory provisions requiring instructions to be written, 3 or to be copied by a stenographer, 4 or where 99 — Herst v. De Comeau, 1 Sweeny (N. Y.) 590. 1 — "The presumption, in the ab- sence of anything in the record, is that the court below discharged its duty in charging the jury before they were allowed to separate." Linton v. Housh, 4 Kan. 536. 2 — Richardson v. City of Eureka, 96 Cal. 443, 31 Pac. 458; Flannery v. Van Tassell, 32 N. T. St. '350. 3 — Strong v. Kadlec, 163 111. App. 298. Under a statute requiring re- quests for instructions to be in writ- ing, if the record does not show that the requests were in writing, their refusal^ is not ground for reversal, as it will be presumed that the re- quests were oral, and hence properly refused. Louisville & N. R. Co. v. Orr, 94 Ala. 602; Bellinger v. State, 92 Ala. 86; Winslow v. State, 76 Ala. 42; Crosby v. Hutchinson, 53 Ala. 5; Milner v. Wilson, 45 Ala. 478. The contrary ruling in Myatts v. Bell, 41 Ala. 222, is overruled by the above cases. It will be presumed that the instructions were in writing, where written instructions were necessary, and the record shows nothing to the contrary. Lower v. Franks, 115 Ind. 339; Citizens '-F. & M. Ins. Co. v. Short, 62 Ind. 316; Hardwick v. State, 6 Lea (Tenn.) 229; Meshke v. Van Doren, 16 Wis. 319. Or it may be presumed that a written charge was waived. Hardwick v. State, 6 Lea (Tenn.) 229. Where the record shows that the court read an extract from the opinion of the court contained in a law periodical, it will be presumed that such ex- tract was transcribed into the written instructions given. Citi- zens' F. & M. Ins. Co. v. Short, 62 Ind. 316. Where the record does not show what the court said, it will be presumed that oral remarks were not of such character as to come within the rule requiring instruc- tions to be in writing. O'Hara v. King, 52 HI. 304. 4 — "He asks for a reversal upon the ground that the court orally in- instrueted the jury, and that such instructions, when given, were not taken down by the phonographic re- porter, as contemplated by section 1093 of the Penal Code. If the facts are as contended for by appellant, he has shown reversible error; but he fails in establishing those facts. The minutes of the trial disclose that oral instructions were given to the jury, but we fail to find anything in the record showing that they were not taken down * * * by the §432] Exceptions and Objections — Review. 979 instructions are required to be marked "given" or "re- fused." 5 The presumption is against error in the giving or refus- ing of instructions, 6 and where the record does not contain all the instructions actually given, a refusal to give instruc- tions will not be reviewed, as it will be presumed that the court properly instructed, of its own motion, on questions arising in the case, 7 and that the charge was correct as a phonographic reporter. The legal presumption is that such was the fact, and it is for the defendant to overthrow that presumption." Peo- ple v. Ludwig, 118 Cal. 328, 50 Pac. 426, citing People v. Ferris, 56 Cal. 442. See also, to the same effect, People v. Bumberger, 45 Cal. 650; State v. Preston, 4 Idaho 215, 38 Pac. 694. 5 — It will be presumed, nothing appearing to the contrary, that re- quests were properly marked "Given" or "Eefused," as required by statute. Allen v. State, 74 Ala. 557. Nothing appearing to the con- trary, it will be presumed that the court conformed to the law in de- claring in writing to the jury his rulings upon requests for instruc- tions as presented, and pronounced the same to the jury as "Given" or "Eefused." Jones v. State, 18 Fla. 889. 6 — 'Counsel presented to the court thirteen requests to charge. The court, after remarking that there were certain requests to charge, which it would read, read nine, with- out stating in terms whether it gave them to the jury as the law; nor did the court refuse in terms to charge the four requests not read. Held, that the inference was that it was intended to charge the nine requests read, and to refuse to charge the rest. Hynes v. McDermott, 82 N. T. 41, 37 Am. Eep. 538. "Where a number of instructions to the jury are asked for, and the record states an exception to the refusal to give a part of them only, the inference is that the court gave those to which no exception was taken." Hood v. Maxwell, 1 W. Va. 219. Where the record does not show the reason why an instruction was refused, nor ex- clude presumption that it was for some other reason than its supposed illegality, the appellate court will presume that ruling was correct. Koile v. Ellis, 16 Ind. 301. 7 — Alabama. Cobb v. Malone, 87 Ala. 514. Arkansas. King v. Black, 92 Ark. 598. California. Eiehardson v. City of Eureka, 96 Cal. 443, 31 Pac. 458. Colorado. Klink v. People, 16 Colo. 467, 27 Pac. 1062; Halsey v. Darling, 13 Colo. 1, 21 Pac. 913.. Indiana. Marshall v. Lewark, 117 Ind. 377; Becknell v. Becknell, 110 Ind. 42; Frank v. Grimes, 105 Ind. 346; Town of Princeton v. Geiske, 93 Ind. 102; Morris v. Stern, 80 Ind. 227; Bowen v. Pollard, 71 Ind. 177; Myers v. Murphy, 60 Ind. 282; Freeze v. De Puy, 57 Ind. 188; Leeper v. State, 12 Ind. App. 638; Patehell v. Jaqua, 6 Ind. App. 70. Iowa. Huff v. Aultman, 69 Iowa 980 Instructions to Juries. [§432 whole. 8 So, instructions which are apparently erroneous will be presumed to have been modified by other instruc- tions so as to be correct, where all the instructions do not appear in the record, provided, of course, the error is such as might have been cured by other instructions. 9 If the 71, 58 Am. Rep. 213; State v. Wil- liamson, 68 Iowa 351. Kentucky. Hunt v. Kemper, 10 Ky. L. Rep. 593. Maine. Hewey v. Nourse, 54 Me. 256; Sidensparker v. Sidensparker, 52 Me. 481, 83 Am. Deo. 527n. Massachusetts. Linton v. Allen, 154 Mass. 432. Michigan. People v. Niles, 44 Mich. 606; English v. Caldwell, 30 Mich. 362. Missouri. Meade v. Weed, 45 Mo. App. 385; Whiting v. City of Kan- sas, 39 Mo. App. 259; Wilkerson v. Corrigan Consol. St. Ry. Co., 26 Mo. App. 144. Nebraska. Malcom v. Hanson, 32 Neb. 52. New Mexico. Lewis v. Baca, 5 N. M. 289, 21 Pac. 343. New York. Flannery v. Van Tas- seil, 56 Hun 647; Crouse v. Owens, 49 Hun 610. Ohio. Bean v. Green, 33 Ohio St. 444; Davis v. State, 25, Ohio. St. 369. Texas. Ross v. McGowen, 58 Tex. 603; Ft. Worth & R. G. R. Co. v. Eddleman, 52 Tex. Civ. App. 181. Wisconsin. McPhee v. McDer- mott, 77 Wis. 33; Graves v. State, 12 Wis. 591. 8 — Where a single proposition se- lected from the charge by bill of exceptions is claimed to be errone- ous, and other propositions to which it refers as given and to be given in connection with it, are not found in the record, a reviewing court in sup- port of the judgment will presume that the charge as a whole was a correct statement of the law of the case. Bean v. Green, 33 Ohio i St. 444. 9 — California. People v. Von, 78 Cal. 1, 20 Pae. 35; Viera v. Atchison, T. & S. F. R. Co., 10 Cal. App. 267, 101 Pac. 690. Georgia. Trice v. Rosej 80 Ga. 408; Massengill v. First Nat. Bank of Chattanooga, 76 Ga. 341; John- son v. Latimer, 71 Ga. 470; Bray v. State, 69 Ga. 765; Bell v. State, 69 Ga. 752; Hunt v. Pond, 67 Ga. 578. Illinois. Abingdon v. Meadows, 28 111. App. 442. Indiana. Marshall v. Lewark, 117 Ind. 377; Stull v. Howard, 26 Ind. 456. Iowa. Fernbach v. City of Water- loo, 76 Iowa 598. Minnesota. Cogley v. Cushman, 16 Minn. 397 (Gil. 354). United States. Atchison, T. & S. F. R. Co. v. Howard, 1 C. C. A. 229, 49 Fed. 206. Contra, Cox v. People, 109 111. 457; Schmidt v. Chicago & N. W. R. Co., 83 111. 405; Meyer v. Temme, 72 111. 574. Where the brief does not give the whole of the judge's charge, a de- tached fragment cannot be held to be erroneous. Sawyer, Wallace & Co. v. Maeauley, 18 S. C. 548. Where it appears that instructions were given which were not before the court, which might have modified or changed those given which are in- sisted upon as being erroneous, the § 432] Exceptions and Objections — Eeview. 981 error complained of is such that it could not be obviated by other correct instructions, there is no room for this pre- sumption, and it may be proper to reverse, although all the instructions are not in the record. 10 ' ' Where the record contains charges asked by the appel- lant, but does not show whether they were given or refused, and the refusal of them is not assigned for error, it is to be presumed that they were given as asked." u Ordinarily, the refusal of a request to charge is not avail- able as reversible error, in the absence of all the evidence in the record, 12 and it will be presumed that requested instruc- tions which were refused are unauthorized by the evidence, 13 court cannot presume that there were not other instructions correct- ing any error in the one relied upon as being erroneous. State v. Stan- ley, 48 Iowa 221. 10— Meyer v. Temme, 72 111. 574. 11— Seal v. State, 28 Tex. 492. 12 — See § 431, ante. Error in re- fusing to instruct that certain evi- dence constitutes a variance is not available when the evidence is not in the record. Witz v. Spencer, 51 Ind. 253. , 13 — Alabama. Williams v. Barks- dale, 58 Ala. 288; Gill v. State, 43 Ala. 38. Arkansas. Duggins v. Watson, 15 Ark. 118, 60 Am. Dec. 560; Pogue v. Joyner, 7 Ark. 463. California. Carpenter v. Ewing, 76 Cal. 487; California Cent. By. Co. v. Hooper, 76 Cal, 404. District of Columbia. Oliver v. Cameron, MacArthur & M. 237. Florida. Sammis v. Wightman, 31 Fla. 45; Myrick v. Merritt, 22 Fla, 335; Livingston v. Cooper, 22 Fla, 292; Blige v. State, 20 Fla. 742 51 Am. Eep. 628; Frisbee v. Tima nus, 12 Fla. 537; Miller v. Kings bury, 8 Fla. 357; McKay v. Friebele, 8 Fla. 21; Tompkins v. Eason, 8 Fla. 14; Burk v. Clark, 8 Fla. 9; Bailey v. Clark, 6 Fla. 516; Proctor v. Hart, 5 Fla. 465; Horn v. Gartman, 1 Fla. 73. Illinois. Amos v. Sinnott, 5 III. 440. Indiana. Silver v. Parr, 115 Ind. 113; Joseph v. Mather, 110 Ind. 114; Unruh v. State, 105 Ind. 117; Johns v. State, 104 Ind. 557; Shulse v. Mc- Williams, 104 Ind. 512; Baltimore & O. & C. E. Co. v. Bowan, 104 Ind. 88; Elkhart Mut. Aid, B. & R. Ass'n v. Houghton, 103 Ind. 286, 53 Am. Bep. 514; Stout v. Turner, 102 Ind. 418; Blizzard v. Bross, 56 Ind. 74. Iowa. State v. Moore, 77 Iowa 449; State v. Wyatt, 76 Iowa 328; State v. Daniels, 76 Iowa 87; War- basse v. Card, 74 Iowa 306; State v. Brewer, 70 Iowa 384; Huff v. Ault- man, 69 Iowa 71, 58 Am. Eep. 213; State v. Goode, 68 Iowa 593; State v. Hunter, 68 Iowa 447; State v. Williamson, 68 Iowa 351; Holland v. Union County, 68 Iowa 56; Stier v. City of Oskaloosa, 41 Iowa 353; Little v, Martin, 28 Iowa 558; Shep- hard v. Brenton, 20 Iowa 41. Kansas. State v. Cassady, 12 Kan. 982 Instructions to Jueies. [§432 or, if all the instructions are not brought up, it will be pre- sumed that the instruction was correctly refused because substantially embodied in other instructions given. 14 551; St. Joseph & D. C. E. Co. v. Orr, 8 Kan. 419; Missouri River, Ft. S. & C. R. Co. v. Owen, 8 Kan. 409; Educational Ass'n v. Hitchcock, 4 Kan. 36. Maryland. Regester v. Medcalf, 71 Md. 528. Michigan. Hayes v. Homer, 36 Mich. 374; Curley v. Wyman, 34 Mich. 353; Tupper v. Kilduff, 26 Mich. 394. Missouri. Colburn v. Brunswick Flour Co., 49 Mo. App. 415; Fink v. Regan, 22 Mo. App. 473; Field v. Creeelius, 20 Mo. App.' 302. Montana. Territory v. Scott, 7 Mont. 407, 17 Pac. 627. Nebraska. Willis v. State, 27 Neb. 98. North Carolina. State v. Dicker- son, 98 N. C. 708. Ohio. Davis v. State, 25 Ohio St. 369; Cresinger v. Welch's Lessee, 15 Ohio 156. Oregon. Richards v. Fanning, 5 Ore. 356. South Carolina. State v. Robin- son, 35 S. C. 340. West Virginia. Kinsley v. Monon- galia County Court, 31 W. Va. 464. 14 — Colorado. Klink v. People, 16 Colo. 467, 27 Pac. 1062. Georgia. Pace v. Payne, 73 Ga. 675. Illinois. Chicago, M. & St. P. Ry. Co. v. Yando, 127 111. 214; Gill v. Skelton, 54 111. 158; Hahn v. St. Clair Sav. & Ins. Co., 50 111. 526. See Ives v. Vanscoyoc, 81 111. 120; Wilmington Coal Min. & Mfg. Co. v. Barr, 2 111. App. 84. Indiana. Lehman v. Hawks, 121 Ind. 541; Clore v. Mclntire, 120 Ind. 262; Vancleave v. Clark, 118 . Ind 61, 3 L. R. A. 519; Delhaney v. State. 115 Ind. 499; Ford v. Ford, 110 Ind 89; Garrett v. State, 109 Ind. 527 Taber v. Ferguson, 109 Ind. 227 Puett v. Beard, 86 Ind. 104; Pitts burgh, C. & St. L. R. Co. v. Noel. 77 Ind. 110; Stott v. Smith, 70 Ind. 298; Coryell v. Stone, 62 Ind. 307 Myers v. Murphy, 60 Ind. 282 Freeze v. De Puy, 57 Ind. 188; Lock wood v. Beard, 4 Ind. App. 505 Sexson y. Hoover, 1 Ind. App. 65. Iowa. Huff v. Aultman, 69 Iowa 71. Kansas. Marshall v. Shibley, 11 Kan. 114; Washington Life Ins. Co. v. Haney, 10 Kan. 525; Pacific R. Co. v. Nash, 7 Kan. 280. Maine. Hearn v. Shaw, 72 Me. 187. Massachusetts. Linton v. Allen, 154 Mass. 432. Minnesota. Stearns v. Johnson, 17 Minn. 142 (Gil. 116). Missouri. Meade v. Weed, 45 Mo. App. 385. Nebraska. Malcom v. Hanson, 32 Neb. 52, Ohio. Bolen v. State, 26 Ohio St. 371; Woodward v. Stein, 3 American L. Bee. 352.. Texas. Texas & P. Ry. Co. v. Lowry, 61 Tex. 149. All the instructions must be .em- bodied in the bill of exceptions, or a judgment will not be reversed for faulty instructions given (Hahn v. St. Clair Sav. & Ins. Co., 50 111. 456), for it will be presumed, that those given comprised the substance of those refused (Weyhrich v. Fos- ter, 48 111. 115). The refusal of the § 433] Exceptions and Objections — Beview. 983 "It must be presumed that the court below acted correctly in refusing instructions, * * * unless it appear, by facts or testimony incorporated in the bill of exceptions, that the instructions were relevant or irrelevant to the cause." 15 "If instructions asked by either party be refused, and he excepts, it devolves upon him to set forth, in his excep- tion, all or so much of the evidence with reference to which it may have been asked as will present the question of law designed to be made, else the appellate court would have to presume, in favor of the judgment, that the instruction was properly refused, unless the instruction contradicts or is inconsistent with the pleadings. ' ' 16 Where an instruc- tion has been asked and refused, and the record states the instruction was given in a modified form, but how modified is not set forth, it will be presumed that, as modified, it embodied the law. 17 § 433. Presumption of prejudice on appeal. As was seen in the preceding section, the burden is on the appellant to show error affirmatively upon the record; but there is considerable ' conflict in the decisions as to court to modify certain instructions 17 — Smith v. Childress, 27 Ark. cannot be considered on appeal when 328. all the instructions are not in the Where the record shows that an record. Lehman v. Hawks, 121 Jnd. instruction was asked and given 541. The rule stated is subject to with a statutory modification, but this exception: that, although the does riot show what that statutory entire charge is not brought up in modification is or was, it will be the record, if a request containing a presumed by the supreme court that correct statement of the law appli- the modification was correct, Wil- cable to the facts is refused, and the son v. Fuller, 9 Kan. 176. To the court instructs to the contrary, the same effect is Clampitt v. Kerr, 1 presumption in favor of the correct- Utah 246. Where the record shows ness of the instructions given is that the court refused to give, in overcome. Pace v. Payne, 73 Ga. the language and form requested, a 670. true and pertinent proposition of 15 — Shepherd v. McQuilkin, 2 W. law in its charge to the jury, it will Va. 90. be presumed, in the absence of any- 16 — Duggins v. Watson, 15 Ark. thing appearing in the record to the 118, 60 Am. Dec. 560. contrary, that the same charge was 984 Instructions to Juries. [§433 whether he must not go further, and show not only error, but that the error actually or probably operated to his prejudice. According to one line of cases, error in giving or refus- ing instructions is presumed to be prejudicial and the judg- ment will be reversed unless it affirmatively appears from the record that the error in the particular case was harm- less. 18 substantially given, though in other language and form. Bolen v. State, 26 Ohio St. 371. 18 — Arkansas. Appling v. State, 88 Ark. 393. California. People v. Smith, 105 Cal. 676, 39 Pac. 38. Connecticut. Tompkins v. West, 56 Conn. 487. Florida. Pensacola Electric Co. v. Bissett, 59 Fla. 360. Georgia. Terry v. State, 17 Ga. 204; Potts v. House, 6 Ga. 324, 50 Am. Dec. 329n; Pelham Mfg. Co. v. Powell, 6 Ga. App. 308. Illinois. Cox v. People, 109 111. 457; People v. Peltz, 143 111. App. 181; Fick v. Mohr, 92 111. App. 280. Indiana. Cleveland, C, C. & St. L. R. Co. v. Case, 174 Ind. 369; Sessengut v. Posey, 67 Ind. 408, 33 Am. Rep. 98; Bissell v. Wert, 35 Ind. 54; Plummer v. Indi- anapolis Union R. Co., -56 Ind. App. 615; City of Lafayette v. Ashby, 8 Ind. App. 214. Iowa. State v. Bmpey, 79 Iowa 460; State v. Jacobs, 75 Iowa 247; Roby v. Appanoose County, 63 Iowa 113; Kendig v. Overhulser, 58 Iowa 195; Potter v. Chicago, R. I. & P. R. Co., 46 Iowa 399; Carlin v. Chi- cago, R. I. & P. R. Co., 31 Iowa 370. Kansas. Gillett v. Coram, 5 Kan. 608. Kentucky. Middleton v. Com- monwealth, 136 Ky. 354; Barnett v. Com., 84 Ky. 449. Maine. Hastings v. Bangor House Proprietors, 18 Me. 436. Maryland. Haney v. Marshall, 9 Md. 194. Massachusetts. Tufts v. Seabury, 11 Pick. 142. Michigan. Grand Rapids & I. R. Co. v. Monroe, 47 Mich. 152. Missouri. State v. Taylor, 118 Mo. 153; Hovey & Brown v. Aaron, 133 Mo. App. 573; State v. For- rester, 63 Mo. App. 530; Bindbeutal v. Street By. Co., 43 Mo. App. 463. Nevada. State v. Ferguson, 9 Nev. 106. New York. Greene v. White, 37 N. T. 405; Nicholson v. Conner, 9 Daly 275; Benham v. Cary, 11 Wend. 83l Ohip. Jones v. Bangs, 40 Ohio St. 139, 48 Am. Rep. 664n; Meek v. Pennsylvania Co., 38 Ohio St. 632; Pendleton St. R. Co. v. Stallmann, 22 Ohio St. 1; Lowe v. Lehman, 15 Ohio 179; Baldwin v. Bank of Massilon, 1 Ohio 141. South Carolina. Amaker v. New, 33 S. C. 28; Bonham v. Bishop, 23 S. C. 103. South Dakota. Miller v. MeCon- nell, 23 S. D. 137. Tennessee. Witt v. State, 6 Coldw. 5. Texas, Linney v, Wood, 66 Tex. 433] Exceptions and Objections — Review. 985 Where the evidence is not in the record and an instruc- tion is erroneous, the judgment must be reversed as the error will be presumed prejudicial. 19 Where erroneous instructions have been given to the jury, the reviewing court cannot affirm the judgment on the ground that there were other correct legal propositions applicable to the case, which, if submitted to the jury, would have caused them to reach the same verdict, as if such addi- tional instructions are not given and not asked for, the reviewing court cannot conjecture what effect they would have had upon the minds of the jury. 20 Inconsistent instructions are presumed prejudicial 21 and a similar rule applies to misleading charges. 22 This appears to be the sound and correct rule. Instructions are presumed to have been followed by the jury, and to have affected the verdict. 23 Therefore, where error is shown, prejudice is 22; Gulf, C. & S. F. Ey. Co. v. Greenlee, 62 Tex. 344; Dwyer v. Continental Ins. Co., 57 Tex. 181; Hudson v. Morriss, 55 Tex. 595; Texas & P. Ey. Co. v. Jones, — Tex. Civ. App. — , 123 S. W. 434; Gulf, C. & S. F. Ey. Co. v. Darton (Tex. Civ. App.), 23 S. W. 89; Willis v. Kirbie, 1 Posey, Unrep. Cas. 304; Franklin v. Smith, 1 Posey, Unrep. Cas. 229. West Virginia. State v. Douglass, 28 W. Va. 298; Nicholas v. Kersh- ner, 20 W. Va. 251; Dinges v. Bran- son, 14 W. Va. 100; Strader v. Goff, 6 W. Va. 258. See also, Burkham v. Daniel, 56 Ala. 604. There is no distinction in law be- tween the giving of erroneous in- structions and the withholding of proper instructions. Either, if it works injustice, constitutes error. People v. Smith, 105 Cal. 676, 39 Pac. 38; Greenup v. Stoker, 7 111. (2 Gilm.) 688; City of Lafayette v. Ashby, 8 Ind. App. 214. 19 — Sessengut v. Posey, 67 Ind. 408, 33 Am. Eep. 98; Bissell v. Wert, 35 Ind. 54; Jones v. Bangs, 40 Ohio St. 139, 48 Am. Eep. 664n; Witt v. State, 6 Coldw. (Tenn.) 5; Gulf, C. & S. F. Ey. Co. v. Darton (Tex. Civ. App.), 23 S. W. 89. 20— Amaker v. New, 33 S. C. 28, following Bonham v. Bishop, 23 S. C. 96. 21— Grand Eapids & I. E. Co. v. Monroe, 47 Mich. 152. But see In re Darrow, 175 Ind. 44. 22 — State v. Jacobs, 75 Iowa 247; Meek v. Pennsylvania Co., 38 Ohio St. 632; Gulf, C. & S. F. Ey. Co. v. Greenlee, 62 Tex. 344; Hudson v. Morriss, 55 Tex. 595. 23— Stanton v. French, 91 Cal. 274, 27 Pac. 657, 25 Am. St. Eep. 174; Needham v. People, 98 111. 275; Mitchell v. Illinois & St. L. Eailroad & Coal Co., 85 111. 566; Pettibone v. Maclem, 45 Mich. 381; Lowe v. Leh- 986 Instructions to Jxjeies. [§433 also shown unless the record goes further and shows that, notwithstanding the error, the party was not prejudiced. 2 * Other cases, however, take a contrary view, and hold that no presumption of prejudice is raised by the mere presence of error in the record. Under this view, error in the instruc- tions is not ground for reversal unless the appellant shows affirmatively upon the record that the error produced actual, or at least possible or probable, injury. 25 man, 15 Ohio 179. Obviously, this presumption may work both ways. It may either operate to render cer- tain errors harmless, or to render erroneous instructions reversible, by showing them to have been preju- dicial. 24 — Lowe v. Lehman, 15 Ohio 179. 25 — See §§ 437, et seq., post, "Harmless and prejudicial error." See also, the following cases: Iowa. Wood v. Porter, 56 Iowa 161; Eyser v. Weissgerber, 2 Iowa 463. Kansas. Central Branch Union Pac. B. Co. v. Andrews 41 Kan. 370, 21 Pac. 276; Johnson v. Leggett, 28 Kan. 590; Burton v. Boyd, 7 Kan. 17. Louisiana. State v. Hill, 39 La. Ann. 927. Tennessee. Noe v. Hodges, 5 Humph. 103. Texas. Loper v. Robinson, 54 Tex. 510; Hollingsworth v. Hols- housen, 17 Tex. 41; Salinas v. Wright, 11 Tex. 572. Virginia. Easley v. Valley Mut. Life Ass'n, 91 Va. 161. "It is not every error in the rul- ings of a judge during the progress of the trial that will justify the setting aside of the verdict. To warrant such action on the part of the court, it must be so grave an er- ror as to induce the belief that, but for its commission, a verdict favor- able to the occasion might have been returned." State v. Hill, 39 La. Ann. 927. Actual or possible preju- dice must be shown, to authorize a reversal. Loper v. Robinson, .54 Tex. 510; Hollingsworth v. Hols- housen, 17 Tex. 41; Salinas v. Wright, 11 Tex. 572; Baltimore & O. R. Co. v. MeKenzie, 81 Va. 71; Brighthope Ey. Co. v. Eogers, 76 Va. 443; Preston v. Harvey, 2 Hen. & M. (Va.) 55. Though a doubt as to whether or not injury was done is sufficient to authorize a reversal. Boren v. State, 32 Tex. Cr. App. 637. Where the court instructs on con- tributory negligence, though that is- sue is not raised by the pleadings, a reviewing court will presume that the verdict was. based on other grounds than contributory negli- gence, if there was no evidence of such negligence. Eckelund v. Tal- bot, 80 Iowa 571. If an instruction states facts as established which are admitted or uncontradicted, no presumption of injury arises unless the record shows that such statement is untrue. Wood v. Porter, 56 Iowa 161. Where it is evident that improper instructions could have reasonably misled the jury to the prejudice of appellant, the judgment will be reversed, but § 434] Exceptions and Objections — Bevtew. 987 § 434. Invited error. It is well settled that a party cannot complain of instruc- tions given at the instance of his adversary if substantially the same, or open to the same objection, as those given at his own request, 26 as, where instructions are not warranted not where the prejudice is not mani- fest. Eyser v. Weissgerber, 2 Iowa 463. If an erroneous charge be given as to the mode of computing damages, but no bill of exceptions be filed, showing that the actual damages allowed by the jury were enhanced by applying the erroneous principle of computation, the verdict will not be disturbed. The court will pre- sume, in such case, that the jury did right, notwithstanding the er- roneous charge. Noe v. Hodges, 5 Humph. (Tenn.) 103. 26 — Arkansas. St. Louis, I. M. & S. E. Co. v. Lamb, 95 Ark. 209; Chi- cago, B. I. & P. B. Co. v. Smith, 94 Ark. 524. Illinois. Harney v. Sanitary Dist. of Chicago, 260 111. 54; Hunter v. Sanitary Dist. of Chicago, 179 111. App. 172; Eobishaw v. Schiller Piano Co., 179 111. App. 163; Somers v. Petteys, 175 111. App. 168; Anken- brandt v. Joachim, 173 HI. App. 158; Howe v. Chicago City Ey. Co., 170 III. App. 636; Devine v. Tazewell Coal Co., 161 111. App. 547; Smith v. Hersh, 161 111. App. 83; City of Eockford v. Falver, 27 111. App. 604; Wear v. Duke, 23 111. App. 323. Indiana. In re Darrow, 175 Ind. 44. Iowa. In re Walker's Will, 152 Iowa 154. Kansas. Shores v. United Surety Co., 84 Kan. 592, 114 Pac. 1062. Kentucky. Gaines v. Madison- ville, H. & B. E. Co., 143 Ky. 250. Maryland. Baltimore & O. E. Co. v. Eesley, 14 Md. 424. Michigan. Needham v. King, 95 Mich. 303. Missouri. Whitmore v. Supreme Lodge Knights & Ladies of Honor, 100 Mo. 46; Harrington v. City of Sedalia, 98 Mo. 583; M. Forster Vinegar Mfg. Co. v. Guggemos, 98 Mo. 391; Hazell v. Bank of Tipton, 95 Mo. 60, 6 Am. St. Eep. 22; Eeilly v. Hannibal & St. J. E. Co., 94 Mo. 600; Keen v. Sehnedler, 92 Mo. 516; Fairbanks v. Long, 91 Mo. 628; State v. Stewart, 90 Mo. 507; Thorpe v. Missouri Pac. Ey. Co., 89 Mo. 650, 58 Am. Eep. 120; Holmes v. Braidwood, 82 Mo. 610; McGonigle v. Daugherty, 71 Mo. 259; Davis v. Brown, 67 Mo. 313; Crutchfield v. St. Louis, K. C. & N. Ey. Co., 64 Mo. 255; Welland v. Metropolitan St. E. Co., 144 Mo. App. 205; Flint-Walling Mfg. Co. v. Ball, 43 Mo. App. 504; Missouri Pac. Ey. Co., v. Schoennen., 37 Mo. App. 612; Straat v. Hayward, 37 Mo. App. 585; Bybee v. Irons, 33 Mo. App. 659; Chicago, S. F. & C. Ey. Co. v. Vivian, 33 Mo. App. 583; Soldanels v. Missouri Pac. E. Co., 23 Mo. App. 516. Nebraska. Wood v. City of Omaha, 87 Neb. 213. Texas. O'Neal v. Knippa (Tex.) 19 S. W. 1020; Mexican Cent. Ey. Co. v. Eodriguez, — Tex. Civ. App. — , 133 S. W. 690. ' 988 Instructions to Juries. [§434 by the evidence, 27 ignore issues, 28 are inconsistent, 29 or fail to define certain terms. 30 Thus an instruction permitting recovery if the defendant was negligent, as alleged, is unob- jectionable when the defendant submits similar requests. 31 The same rule applies to instructions given by the court of its own motion. 32 § 435. Instructions given or refused on party's own mo- tion. Erroneous instructions given cannot be made available as error in the reviewing court by a party on whose motion they were given. He is bound by the theory of his case as presented by the instructions given at his instance, and, if they are erroneous, he cannot be heard to complain. 33 For the purposes of review they will be conclusively presumed 27 — Straat v. Hayward, 37 Mo. App. 585. 28 — Demetz v. Benton, 35 Mo. App. 559. 29 — Eeardon v. Youngquist, 189 111. App. 3. 30 — Herman v. Owen, 42 Mo. App. 387. 31 — Needham v. King, 95 Mich. 303. 32— Hess v. Newcomer, 7 Md. 325; Silsby v. Michigan Car Co., 95 Mich. 204. 33 — California. Harrison v. Spring Valley Hydraulic Gold Co., 65 Cal. 376. Illinois. Mclnturff v. Insurance Co. of North America, 155 111. App. 225, aff'd 248 111. 92, 140 Am. St. Eep. 153, 21 Ann. Cas. 176. Indiana. Worley v. Moore, 97 Ind. 15; Pennsylvania Co. v. Eoney, 89 Ind. 453, 46 Am. Eep. 173; Cobb v. Krutz, 40 Ind. 323; Minot v. Mitchell, 30 Ind. 228, 95 Am. Dee. 685. Kansas. Ft. Scott, W. & W. Ey. Co. v. Fortney, 51 Kan. 287, 32 Pac. 904; Chicago, K. & W. E. Co. v. Watkins, 43 Kan. 50, 22 Pac. 985; Greer v. Higgins, 20 Kan. 420; Kan- sas Pac. Ey. Co. v. Cutter, 19 Kan. 83; State v. Eeddick, 7 Kan. 144. Maine. Eobinson v. White, 42 Me. 209. Maryland. Keener v. Harrod, 2 Md. 63, 56 Am. Dec. 706. Missouri. Jennings v. St. Louis, I. M. & S. Ey. Co., 99 Mo. 394; Teth- erow v. St. Joseph & D. M. E. Co., 98 Mo. 74, 14 Am. St. Eep. 617; Musser v. Adler, 86 Mo. 445; Flow- ers v. Helm, 29 Mo. 324; Chamberlin v. Smith's Adm'r, 1 Mo. 482. Nebraska. Hankins v. Eeimers, 86 Neb. 307. North Carolina. Moore v. Parker, 91 N. C. 275; McLennan v. Chisholm, 66 N. C. 100; Buie v. Buie, 24 N. C. 87. Pennsylvania. Eitter .v. Sieger, 105 Pa. St. 400; Benson v. Maxwell, 105 Pa. St. 274; Pritchett v. Cook, 62 Pa. St. 193; Hubley v. Vanhorne, 7 Serg. & E. 185. South Carolina. Oliver v. Sale, 17 § 436] Exceptions and Objections — Beview. 989 to be correct. 34 Thus where counsel for defendant in ad- dressing the jury states that in a certain contingency they shall find for plaintiff, he cannot object to an instruction in accord with his own statement. 33 And a charge expressing the same idea conveyed by a plea, when taken most strongly against the pleader, cannot be assigned as error, although not correct if made entirely with reference to the evidence adduced. 36 Where a party asks an instruction which should not be given at all because there was not sufficient evidence on which to base it, but the same is modified and given, he has no ground of complaint. 37 The practice of giving voluminous instructions in important cases arises as much from the fault of counsel as from the volition of the court, and a party who has submitted more than twenty requests for instructions cannot be heard to complain that the jury have been misled and confused by the length of the instruc- tions. 38 § 436. Instructions given by consent. If an instruction is given by consent, such consent makes the instruction the law of the case, and, upon appeal, its correctness cannot be questioned. 39 So, where the court said, in the presence of the parties, that, "if agreeable, he would instruct the jury orally," and there was no objec- tion, the parties are deemed to have consented to the giving i S. C. 587; Ellen v. Ellen, 16 S. C. 38— Henke v. Babcock, 24 Wash. 139. 556, 64 Pac. 755. Texas. Hardy v. De Leon, 5 Tex. 39 — Emory v. Addis, 71 111. 273; 211; Collins v. State, 5 Tex. App. 38. Stratton v. Staples, 59 Me. 94; Phil- Virginia. Eichmond & D. E. Co. adelphia, W. & B. E. Co. v. Harper, v. Medley, 75 Va. 499; Murrell v. 29 Md. 330; Baugher v. Wilkins, 16 Johnson's Adm'r, 1 Hen. &-M. 450. Md. 35, 77 Am. Dee. 279. United States. Castle, v. Bullard, Where the judge instructed the 23 How. 172, 16 L. Ed. 424. jury that he had given them the law 34 — Kansas Pac. Ey. Co. v. Cut- as understood and assented to by ter, 19 Kan. 83. the counsel, and this statement was 35 — Marquette, H. & O. E. Co. v. acquiesced in by both counsel, it Marcott, 41 Mich. 433. must be regarded as a waiver of all 36 — Fort v. Barnett, 23 Tex. 460. objections to the instruction. Strat- 37 — Eyan v. Donnelly^ 71 111. 100. ton v. Staples, 59 Me. 94. 99.0 Instructions to Juries. [§ 436 of oral instructions, and cannot assign it as error. 40 When a party waives objections to any request of the opposite party, which the court thereupon gives to the jury, such party cannot afterwards reserve an exception thereto with- out first obtaining leave of court. The same rule applies to instructions given by the court which are substantially the same as those requested, although the court may have expressed it in his own lan- guage, or made other slight modifications. 41 So, the ap- pellant cannot complain that an instruction was not given which was refused at his request. 42 And where no excep- tion is taken to the giving of an instruction at the time it is given, and it is recited in the record that it was given by agreement of parties, the appellant is precluded from as- signing it as a cause of error, whether it states a correct 40 — Downey v. Abel, 87 111. App. 530. 41 — Connecticut. Howey v. New England Nav. Co., 83 Conn. 278. Illinois. Illinois Cent. K. Co. v. Latimer, 128 111. 163; Solomon V Friend, 42 111. App. 407. Iowa. Campbell v. Ormsby, 65 Iowa 518; Weller v. Hawes, 49 Iowa 45. Kansas. Ft. Scott, W. & W. Ry. Co. v. Fortney, 51 Kan. 287, 32 Pac. 904. Massachusetts. Com. v. Locke, 114 Mass. 288. Michigan. Needham v. King, 95 Mich. 303. Missouri. -Beardon v. Missouri Pac. Ry. Co., 114 Mo. 384; Harper v. Morse, 114 Mo. 317. Nebraska. Dawson v. Williams, 37 Neb. 1. North Carolina. Simpson v. Pe- gram, 112 N. C. 541. Texas. Martin v. Missouri Pac. Ry. Co., 3 Tex. Civ. App. 133; Citi- zens.' Ry. Co. v. Hargrove, — Tex. Civ. App. — , 135 S. W. 1063; Gal- veston, H. & S. A. Ry. Co. v. Smith (Tex. Civ. App.) 24 S. W. 668. Where the court, in modifying an instruction asked, merely employed the language used in another instruc- tion given at the request of the same party, such party will not be heard to complain that the instruction was erroneous. Pierce v. Millay, 62 111. 133. A charge cannot be assigned as error where it is the same in sub- stance as one requested by the party complaining, but refused. Galves- ton, H. & S. A. Ry. Co. v. Smith (Tex. Civ. App.) 24 S. W. 668. 42— §tate v. Jackson, 99 Mo. 60; State v. Elliott, 90 Mo. 350. "A party to a cause, after except- ing to an instruction as erroneous, will not be heard to complain be- cause it was afterwards revoked and withdrawn from the jury." Sittig v. Birkestack, 38 Md. 158; Oddie v. Mendenhall, 84 Minn. 58. §437] Exceptions and Objections — Review. 991 principle of law or not. 43 But a party is not estopped from alleging error in an instruction as to the construction of a written agreement by the fact that, on the trial, his counsel made a verbal statement, when offering the agreement in evidence, that such was the proper construction. 44 § 437. Harmless and prejudicial error.. It is a general well-recognized rule that a judgment will not be reversed, or a verdict set aside, because of error when it appears that no harm has resulted to the complain- ing party, 45 and in most states statutory provisions ex- 43— Emory v. Addis, 71 HI. 273. 44 — Hoffman v. Bloomsbury & S. E. Co., 143 Pa. St. 503, 157 Pa. St. 174. 45 — Arkansas. Crawford County Bank v. Baker, 95 Ark. 438; Brooks v. Perry, 23 Ark. 32; Patterson v. Fowler, 22 Ark. 396; Swinney v. State, 22 Ark. 215. Colorado. Geiger v. Kiser, 47 Colo. 297, 107 Pac. 267; Bassett v. Inman, 7 Colo. 270, 3 Pac. 383. riorida. Pensaeola Electric Co. v. Bissett, 59 Fla. 360. Georgia. Johnson v. Cox, 81 Ga. 25, 59 Am. Rep. 645; Wilson v. State, 69 Ga. 226; Welch v. Butler, 24 Ga. 445; Carstarphen v. Central of Georgia E. Co., 8 Ga. App. 162. Illinois. Mayzels v. Chicago City Ey. Co., 177 111. App. 534; Jones v. Vickers, 173 111. App. 481; Nichols v. City of Collinsville, 165 111. App. 457; Hendrix v. Goldman, 163 111. App. 592; Eingering v. Cleveland, C, C. & St. L. Ey. Co., 161 111. App. _ 43. Indiana. Haxton v. McClaren, 132 Ind. 235; Stewart v. State, 111 Ind. 554; Audis v. Personett, 108 Ind. 202; Atkinson v. Dailey, 107 Ind. 117; Davis v. Eeamer, 105 Ind. 318; Barnett v. State, 100 Ind. 171; Froun v. Davis, 97 Ind. 401; Louisville, N. A. & C. Ey. Co. v. Porter, 97 Ind. 267; Jones v. Angell, 95 Ind. 376; Simpkins v. Smith, 94 Ind. 470; Mooney v. Kinsey, 90 Ind. 33; Shryer v. Morgan, 77 Ind. 479; Hum- mel v. Tyner, 70 Ind. 84; Higbee v. Moore, 66 Ind. 263; Eichardson v. State, 55 Ind. 381; Harris v. State, 30 Ind. 131; American Surety Co. of New York v. State, 46 Ind. App. 126. Iowa. Harris v. Beebe, 144 Iowa 735; State v. Price, 75 Iowa 243. Louisiana. State v. Cazeau, 8 La. Ann. 114; State v. Brette, 6 La. Ann. 653. Minnesota. State v. Western U. Tel. Co., Ill Minn. 21. Missouri. State v. Tull, 119 Mo. 421; Crawford v. Armstrong, 58 Mo. App. 214; Gaty v. Sack, 19 Mo. App. 470; Nance v. Metcalf, 19 Mo. App. 183. Nebraska. Smith v. Lorang, 87 Neb. 537; Beavers v. Missouri Pac. E. Co., 47 Neb. 761. Nevada. Bianehi v. Maggini, 17 Nev. 322, 30 Pac. 1004; Truckee Lodge, No. 14, I. O. O. F. v. Wood, 14 Nev. 293; Sharon v. Minnock, 6 992 Instructions to Jukies. [§437 pressly declare that such is the rule. 48 In such cases the doctrine of error without injury applies and in the interests of substantial justice the judgment is affirmed. The burden is on the appellant to show error affirmatively on the record, 47 although there is some conflict in the cases as to whether or not prejudice will, be presumed from an error. 48 If it can be shown affirmatively that the error did not affect the result adversely to the complaining party, the error is harmless. 49 And the doctrine of harmless error also Nev. 377; Brown v. Lillie, 6 Nev. 244; Robinson v. Imperial Silver Min. Co., 5 Nev. 44. Oklahoma. Woodward v. Bing- ham, 25 Okla. 400, 106 Pae. 843. Oregon. Strong v. Kamm, 13 Ore. 172, 9 Pac. 331; Briscoe v. Jones, 10 Ore. 63; Salmon v. Olds, 9 Ore. 488. Texas. Loper v. Robinson, 54 Tex. 510; Hollingsworth v. Holshousen, 17 Tex. 41; Robinson v. Varnell, 16 Tex. 382; Salinus v. Wright, 11 Tex. 572; Mercer v. Hall, 2 Tex. 284; Boren v. State, 32 Tex. Cr. App. 637. Virginia. Easley v. Valley Mut. Life Ass'n, 91 Va. 161; Payne v. Grant, 81 Va. 164. Washington. Brown v. Forest, 1 Wash. T. 201. 46 — California. Code Civ. Proc. § 475. Preston v. Central California Water & Irrigation Co., 11 Cal. App. 190, 104 Pae. 462. Colorado. Geiger v. Kiser, 47 Colo. 297, 107 Pac. 267. Georgia. Terry v. State, 17 Ga. 204; Shadwick v. Me*Donald, 15 Ga. 392. Illinois. Municipal Court Act, § 23, fl 8, J, & A. H 3335 (8). Bradley v. Chicago & N. W. Ry. Co., 147 111. App. 397. Indiana. Dodge v. Lake Shore & M. S. R. Co., 45 Ind. App. 281. Kansas. Spillman v. Union Port- land Cement Co., 81 Kan. 775, 106 Pac. 1087. Kentucky. Young's Adm'r v. Chesapeake & O. R. Co., 136 Ky. 784. Missouri. Rev. St. 1909, § 2082. Cowherd v. St. Louis & S. P. R. Co., 151 Mo. App. 1. Nebraska. Nielsen v. Central Ne- braska Land & Investment Co., 87 Neb. 518. Oklahoma. Woodward v. Bing- ham, 25 Okla. 400, 106 Pac. 843. South Dakota. Koester v. North- western Port Huron Co., 24 S. D. 546. Texas. In criminal cases, error in the instructions has been held ground for reversal, regardless of the ques- tion of prejudice. Cook v. State, 22 Tex. App. 511; Clanton v. State, 20 Tex. App. 616; Bravo v. State, 20 Tex. App. 188. Contra, Boren v. State, 32 Tex. Cr. App. 637, holding that a judgment in a criminal case will be reversed for error in the in- structions only when the error was harmful, or there is doubt as to whether or not injury was done. Washington. Hawkes v. Hoffman, 56 Wash. 120, 24 L. R. A. (N. S.) 1038n, 105 Pac. 156. 47— See § 429, ante. 48 — See §433, ante, "Presumption of prejudice." 49— Alabama. Hill v. State, 43 §437] Exceptions and Objections — Review. 993 applies if the error is such that it has no tendency to mis- lead a jury of ordinary capacity; 50 although it has been held that where the error might have misled the jury, and Ala. 335; Sims v. Boynton, 32 Ala. 353, 70 Am. Dec. 540; Taylor v. Kelly,' 31 Ala. 59, 68 Am. Dee. 150. California. People v. Smith, 105 Cal. 676, 39 Pac. 38; People v. Piner, 11 Cal. App. 542, 105 Pae. 780. Colorado. Fearnley v. Fearnley, 44 Colo. 417, 98 Pac. 819. Georgia. Hadden v. Larned, 87 Ga. 634. Illinois. Gray v. Troutman, 158 111. 171; Keeler v. Herr, 157 111. 57; Hubuer v. Feige, 90 111. 208; Eice v. Brown, 77 111. 549; Sterling Bridge Co. v. Baker, 75 111. 139; Sandberg v. Brinks Chicago City Exp. Co., 151 111. App. 623. Kansas. , Mannen v. Bailey, 51 Kan. 442, 32 Pac. 1085; Redden v. Tefft, 48 Kan. 302, 29 Pac. 157. Mississippi. Josephine v. State, 10 George 613. Missouri. State v. Bowerman, 140 Mo. App. 410; Biirbridge v. Kansas City Cable R. Co., 36 Mo. App. 669. Nebraska. Pjarrou v. State, 47 Neb. 294. Ohio. Berry v. State, 31 Ohio St. 219, 27 Am. Rep. 506; United States Exp. Co. v. Backman, 28 Ohio St. 144; Cricket v. State, 18 Ohio 9. Oklahoma. Harding v. Gillett, 25 Okla. 199, 107 Pac. 665. Tennessee. Myers v. Bank of Tennessee, 3 Head 330; Douglas v. Neil, 7 Heisk. 438; David v. Bell, Peck. 135. Virginia. Muscoe v. Com., 87 Va. 460. Washington. State v. McCormick, 56 Wash. 469, 105 Pae. 1037. Blashfield Vol. 1—63 West Virginia. Clay v. Bobinson, 7 W. Va. 348. 50 — Alabama. McMahon v. State, 168 Ala. 70; Armstrong v. Tait, 8 Ala. 635. Arkansas. Stone v. Kaufman, 25 Ark. 187. California. People v. Fredoni, 12 Cal. App. 685, 108 Pac. 663. Connecticut. Smith v. King, 62 Conn. 515. Georgia. Snell v. , State, 7 Ga. App. 751. Illinois. Eehfuss v. Hill, 243 111. 140; Gray v. Troutman, 158 111. 171; Titley v. Enterprise Stone Co., 127 111. 457; Bobbins v. Both, 95 111. 464; City of Chicago v. Hes- ing, 83 111. 204, 25 Am. Bep. 378; Bowden v. Bowden, 75 111. 143. Indiana. Louisville, N. A. & C. By. Co. v. Shanks, 132 Ind. 395; Poland v. Miller, 95 Ind. 387, 48 Am. Bep. 730; Wilson v. Trafalgar & Brown Co.. Gravel Boad Co., 93 Ind. 287; Vanvalkenberg v. Vanvalken- berg, 90 Ind. 433; City of Indianap- olis v. Scott, 72 Ind. 197. Iowa. Searles v. Northwestern Mut. Life Ins. Co. of Milwaukee, 148 Iowa 65, 29 L. E. A. (N. S.) 405n; State v. Whitbeck, 145 Iowa 29; Taylor v. Chicago, St. P. & K. C. Ry. Co., 76 Iowa 753; State v. Price, 75 Iowa 243; Lindsay v. City of Des Moines, 74 Iowa 111; State v. Hart, 67 Iowa 142; Ross v. City of Davenport, 66 Iowa 548; Blackburn v. Powers, 40 Iowa 681; Hunt v.- Chicago & N. W. R. Co., 26 Iowa 363; Ocheltree v. Carl, 23 Iowa 394; How v. Reed, 20 Iowa 591; McKay v. Leonard, 17 Iowa 569; 994 Instructions to Juries. [§437 the court cannot see whether it did or not, the rule as to the presumption of prejudice is controlling. 61 The rules as to harmless error have been applied in almost an innumerable number of cases, and the various expres- sions, applications and illustrations of such rules might be multiplied indefinitely. Only a few cases illustrative of the general rules will be presented here. Error as to matters not contested is harmless and not ground for reversal, 52 and a judgment will not be reversed for errors in instructions where the result is not affected, 63 Clagett v. Conlee, 16 Iowa 487; Thompson v. Blanchard, 2 Iowa 44. Michigan. People v. Marks, 90 Mich. 555; Cross v. Lake Shore & M. S. R. Co., 69 Mich. 363, 13 Am. St. Rep. 399; Continental Ins. Co. v. Horton, 28 Mich. 173; Sheehan v. Dahymple, 19 Mich. 239; People v. Scott, 6 Mich. 287. Missouri. State v. Steele, 226 Mo. 583; Suttie v. Aloe, 39 Mo. App. 38. Nebraska. Converse v. Meyer, 14 Neb. 190. South Dakota. Dilger v. Griffith, 26 S. D. 411. Texas. J Hollingsworth v. Hols- housen, 17 Tex. 41; Settle v. San Antonio Traction Co., — Tex. Civ. App. — , 126 S. W. 15; Mass v. State, 59 Tex. Cr. App. 390; Rand v. Jones, 4 Willson, Civ. Cas. Ct. App. §204. Virginia. Watson v. Com., 87 Va. 608; Muscoe v. Com., 87 Va. 460; Wager v. Barbour, 84 Va. 419; Com. v. Lucas, 84 Va. 303; Richmond & D. R. Co. v. Norment, 84 Va. 167, 10 Am. St. Rep. 827; Baltimore & O. R. Co. v. MeKenzie, 81 Va. 71; Bright- hope Ry. Co. v.' Rogers, 76 Va. 443; Preston v. Harvey, 2 Hen. & M. 55. United States. Knickerbocker Life Ins. Co. v. Trafz, 104 U. S. 197, 26 L. Ed. 708. 51 — Terry v. Buffington, 11 Ga. 337, 56 Am. Dec. 453; Duffany v. Ferguson, 66 N". Y. 482, rev'g 5 Hun 106. " 52 — Consolidated Coal Co. v. Maehl, 31 111. App. 252, aff'd 130 111. 551; Gulf, C. & S. F. Ry. Co. v. Rea- gan (Tex. Civ. App.) 34 S. W. 796; La Bee v. Sultan Logging Co., 59 Wash. 341, 109 Pac. 1023; Bokien v. State Ins. Co. of Oregon, 14 Wash. 39, 44 Pac. 110; Rawson v. Ellsworth, 13 Wash. 667, 43 Pac. 934. 53 — Immaterial and minor errors which manifestly had no influence upon the decision will not authorize a reversal. California. People v. Piner, 11 Cal. App. 542, 105 Pac. 780. .. Connecticut. Smith v. King, 62 Conn. 515. Georgia. Strong v. State, 95 Ga. 499. Illinois. Massachusetts Mut. Life Ins. Co. v. Robinson, 98 111. 324. Indiana. Kimble v. Seal, 92 Ind. 276. Oklahoma. Harding v. Gillett, 25 Okla. 199, 107 Pac. 665. Texas. Hollingsworth v. Hols- housen, 17 Tex. 41. Substantial correctness is all that is required. Massachusetts Mut. §437] Exceptions and Objections — Review. 995 as in the case of mere verbal inaccuracies, 54 misstatements, 55 or inconsistencies, 56 where there is an omission of essential Life Ins. Co. v. Robinson, 98 111. 324: Needham v. People, 98 111. 276, Montag v. Linn, 23 111. 551; Oliver v. State, 39 Miss. 526. 54 — Mere verbal criticisms and in- accuracies of expression are not ground for reversal unless it appears probable that the jury were misled. California. People v. Fredoni, 12 Cal. App. 685, 108 Pac. 663. • Georgia. Milledgeville Oil Mills v. Wilkinson, 134 Ga. 840; Chatta- nooga, B. & C. B. Co. v. Palmer, 89 Ga. 161. Idaho. O'Connor v. Langdon, 2 Idaho 803, 26 Pac. 659. Illinois. People v. Strauch, 247 111. 220; Pierce v. Hasbrouck, 49 111. 23; Lecklieder v. Chicago City Ey. Co., 172 111. App. 557; Anderson v. Eastman, 168 111. App. 172; Cole- sar v. Star Coal Co., 160 111. App. 251, aff'd 255 111. 532; Welch v. Miller, 32 111. App. 110. Indiana. Wilson v. Trafalgar & Brown Co. Gravel Boad Co., 93 Ind. 287; Vanvalkenberg v. Vanvalken- berg, 90 Ind. 433; Chambers v. Kyle, 87 Ind. 83; Pittsburgh, C. & St. L. Ry. Co. v. Sponier, 85 Ind. 165; For- gey v. First Nat. Bank of Cambridge City, 66 Ind. 123; Morgantown Mfg. Co. v. Hicks, 46 Ind. App. 623; Pitts- burgh, O, C. & St. L. Ey. Co. v. Welch, 12 Ind. App. 433; Coppage v. Gregg, 1 Ind. App. 112. Iowa. Brown v. West Biverside Coal Co., 143 Iowa 662, 28 L. E. A. (N. S.) 1260n; Citizens' State Bank v. Council Bluffs Fuel Co., 89 Iowa 618. Michigan. Labar v. Crane, 56 Mich. 586. Missouri. Suttie v. Aloe, 39 Mo. App. 38. Montana. Burgess v. Territory (Mont.) 19 Pac. 558. New York. Carpenter v. Eastern Transp. Co., 71 N. Y. 574. South Dakota. Dilger v. Griffith, 26 S. D. 411. Texas. Harris v. Daugherty, 74 Tex. 1, 15 Am. St. Eep. 812; Galves- ton, H. & S. A. Ey. Co. v. Porfert, 72 Tex. 344; Settle v. San Antonio Traction Co., — Tex. Civ. App. — , 126 S. W. 15. 55 — "A misstatement of the lan- guage of a witness by the court in its charge to the jury is no ground for reversal unless such misstate- ment is as to a material part of his testimony, and probably misleads the jury." Bellew v. Ahrburg, 23 Kan. 287. See also, Hull v. Detroit United By., 158. Mich. 682. A misstatement of the evidence is harmless error, where the legal ef- fect of the evidence is the same, whatever view of it may be taken. West Chicago St. E. Co. v. Martin, 154 111. 523; Knott v. Dubuque & S. C. Ey. Co., 84 Iowa 462; Kaufman v. Schoeffel, 46 Hun (N. Y.) 571. 56 — Inconsistency between in- structions is not reversible error un- less actually or probably prejudicial. Nuckolls v. Gaut, 12 Colo. 361, 21 Pac. 41; Overland Mail & Exp. Co. v. Carroll, 7 Colo. 43, 1 Pac. 682; Bobbins v. Both, 95 111. 464; Wenks v. Hazard, 149 Iowa 16; Bayles v. Savery Hotel Co., 148 Iowa 29 ; Bige- low v. Wygal, 52 Kan. 619, 35 Pac. 200. Where two paragraphs of a charge are inconsistent, as applied to the 996 Instructions to Juries. [§437 elements, 57 or where the decision is based on different grounds. 58 So, it is also held that a meaningless instruction does not warrant reversal, 59 and a like rule has been applied where particular facts were singled out ; eo where the in- structions were repeated; 61 abstract instructions; 62 where facts, and so the jury cannot follow the instructions as a whole, the jury may properly ignore the paragraph which, as applied to the facts of the case, is incorrect, and follow the cor- 1 rect instruction. Hillebrant v. Green, 93 Iowa 661. 57 — People v. Mines, 164 111. App. 658. 58 — Error in an instruction is harmless, where the case is decided upon a point or grounds wholly in- dependent of that referred to in the erroneous instruction. Comstock 's Appeal, 55 Conn. 214. See City of Tacoma v. Nisqually Power Co., 57 Wash. 420, 107 Pae. 199. An instruction outside the evi- dence is not prejudicial to plaintiff, where the jury find for defendant on another ground. Blatchford v. Boyden, 122 111. 657. 59 — "A judgment will not be re- versed simply because an instruction given by the trial court is meaning- less, but only when it is erroneous, and works injury to the substantial rights of the party complaining." Staser v. Hogan, 120 Ind. 207; Kimble v. Seal, 92 Ind. 276; Hentig v. Kansas Loan & Trust Co., 28 Kan. 617. 60— Schubert v. Schubert, 168 111. App. 419; Conover v. Carpenter, 57 Wash. 146, 106 Pac. 620. 61 — Lecklieder v. Chicago City Ry. Co., 172 111. App. 557. 62 — Christensen v. Oscar Daniels Co., 170 111. App. 59; Miller v. Ken- wood Bridge Co., 169 111. App. 404. Error in the statement of a rule of law in no way applicable to the facts of the case on trial is not ground for reversal unless the jury may have been misled, and the ap- pellant injured. Alabama. Fleming v. Lunsford, 163 Ala. 540; Hudson v. Bauer Gro- cery Co., 105 Ala. 200; Johnson v. Boyles, 26 Ala. 578; Salmons v. Eoundtree, 24 Ala. 458; Magee v. Billingsley, 3 Ala. 679; Hughes v. Parker, 1 Port. 139. Arkansas. Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140. Georgia. Boyd v. State, 17 Ga. 194. Illinois. City of Farmington v. Wallace, 134 HI. App. 366. Indiana. Fitzgerald v. Goff, 99 Ind. 28. Iowa. Doherty v. Des Moines City R. Co., 144 Iowa 26. Louisiana. State v. Turner, 35 La. Ann. 1103. Michigan. People v. Marble, 38 Mich. 117. New York. Clarke v. Dutcher, 9 Cow.- 674. Pennsylvania. Numan v. Ka^/p, 5 Bin. 73. South Carolina. Jordan v. Lang, 22 S. C. 164. Tennessee. Wilson v. State, 3 Heisk. 278; Steinwehr v. State, 5 Sneed 586. Texas. Blake v. Hamburg Bremen Fire Ins. Co., 67 Tex. 160, 60 Am. Rep. 15; Hardy v. De Leon, 5 Tex. 211; Jones v. Thurmond 's Heirs, 5 §437] Exceptions and Objections — Review. 997 the pleadings were by the court referred to ; 63 or where the instructions are not supported by the evidence. 64 Misleading instructions are usually considered prejudi- Tex. 318; McClearland v. State, 24 Tex. App. 202; Smith v. State, 34 Tex. Cr. App. 265. West Virginia. Teel v. Coal & Coke E. Co., 66 W. Va. 315; Shep- pard v. Peabody Ins. Co., 21 W. Va. 370. 63 — Vaughn v. O'Gara Coal Co., 173 111. App. 268; Cooper v. Kanka- kee Elee. Light Co., 164 111. App. 581; Courtney v. Illinois Cent. E. Co., 161 111. App. 577. 64 — A correct statement of law, though not applicable to the evi- dence, and irrelevant to the case, is not ground for reversal unless it may have misled the jury to the preju- dice of the appellant: Alabama. Birmingham Bailway, Light & Power Co. v. Anderson, 163 Ala. 72. Arkansas. McNeill v. Arnold, 22 Ark. 477; Hellems v. State, 22 Ark. 207; Pogue v. Joyner, 7 Ark. 463. Florida. Louisville & N. E. Co. v. Willis, 58 Fla. 307; Milton v. Black- shear, 8 Fla. 161; Belden v. Gray, 5 Fla. 504. Georgia. Pope v. Pope, 95 Ga. 87; Tumlin v. Parrott, 82 Ga. 732; Barker v. Blount, 63 Ga. 423. Illinois. Chapman v. Stewart, 63 111. 332; Sandberg v. Brinks Chicago City Exp. Co., 151 111. App. 623. Indiana. Ohio & M. Ey. Co. v. Stein, 140 Ind. 61; Brant v. Gallup, 111 Ind. 487; Stockton v. Stockton, 73 Ind. 510; Hummel v. Tyner, 70 Ind. 84; Wiles v. Trustees of Phil- ippi Church, 63 Ind. 206; Parmlee v. Sloan, 37 Ind. 469; McCall v. Seev- ers, 5 Ind. 187; Indianapolis Trac- tion & Terminal Co. v. Ulrick, 45 Ind. App. 149; Evansville & I. E. Co. v. Parting, 6 Ind. App. 375; Foss-Schneider Brewing Co. v. Mc- Laughlin, 5 Ind. App. 415; Boltz v. Smith, 3 Ind. App. 43. Iowa. Fisher v. Bolton, 148 Iowa 651; Parkhurst v. Masteller, 57 Iowa 474; Sullivan v. Finn, 4 Greene 544. Kansas. Barbour v. City of Bose- dale, 82 Kan. 213, 107 Pac. 558; State v. Keys, 53 Kan. 674, 37 Pac. 167; Ft. Scott, W. & W. E. Co. v. Karracker, 46 Kan. 511, 26 Pac 1027; Kansas City, Ft. S. & G. E. Co. v. Hay, 31 Kan. 177, 1 Pac. 766; Dickson v.. Eandal, 19 Kan. 214; Douglas v. Wolf, 6 Kan. 88. Missouri. State^ v. Donnelly, 130 Mo. 642. New Hampshire. Nutting v. Her- bert) 37 N. H. 346; Simonds v. Clapp, 16 N. H. 222. North Carolina'. Bryan v. Cowles, 152 NJC. 767;, Evans v. Howell, 84 N. C. 460. Ohio. Schneider v. Hosier, 21 Ohio St. 98; Satchell v. Doran, 4 Ohio 542; French v. Millard, 2 Ohio 44; Cincinnati, N. O. & T. P. Ey. v. Eawson, 16 Cine. L. Bui. 423. Texas. Mills v. Ashe, 16 Tex. 295; Allen v. Clearman, — Tex. Civ. App. — , 128 S. W. 1140; Miller v. State, 36 Tex. Cr. App. 47; McGuire v. State (Tex. Cr. App.) 28 S. W. 345. Washington. Carstens v. Stetson & Post Mill Co.,' 14 Wash. 643, 45 Pac. 313. United States. Ames v. Quimby, 106 IT. S. (16 Otto) 342, 27 L. Ed. 100. 998 Instructions to Juries. [§437 cial, 05 unless it appears that the proper result has been obtained. 66 If a case is close on the question of damages, the rulings 65 — Instructions having a tend- ency to mislead, although correct, constitute reversible error. Arkansas. Blackburn v. Morton, 18 Ark. 384. Colorado. Perot v. Cooper, 17 Colo. 80, 31 Am. St. Rep. 258. Georgia. Hilton v. Sylvania & G. R. Co., 8 Ga. App. 10. Nebraska. Chicago, B. & Q. R. Co. v. Anderson, 38 Neb. 112. Ohio. White v. Thomas, 12 Ohio 312. Pennsylvania. Pennsylvania Ca- nal Co. v. Harris, 101 Pa. St. 93; Skinner v. McAllister, 4 Cent. Rep. 750. Texas. Galveston Land & Im- provement Co. v. Levy, 10 Tex. Civ. App. 104. West Virginia. State v. Cain, 20 W. Va. 679. Contra, Floyd v. State, 82 Ala. 16. See also, Louisville & N. R. Co. v. Young, 168 Ala. 551; Rullman v. Rullman, 81 Kan. 521, 106 Pac. 52; Homestead* Fire Ins. Co. v. Ison, 110 Va. 18'. Where an instruction states a proposition of law too broadly, but, as applied to the facts of the case, it is correct, the failure to state the limitations of the principle so laid down will not work a reversal, as any possible misleading tendeircy can be obviated by asking for an explanatory charge. Anniston City Land Co. v. Edmondson (Ala.) 30 So. 61. "Where an instruction is errone- ous, and calculated to mislead the jury, and the verdict would have been different had the instructions not been given, a new trial will be awarded." Blackburn v. Morton, 18 Ark. 384. A verdict will not be set aside be- cause the jurors, or some of them, assert that they misunderstood the charge. Belknap v. Wendell, 36 N. H. 250; Folsom v. Brawn, 25 N. H. 115, 124; Tyler v. Stevens, 4 N. H. 116, 17 Am. Dec. 404. 66 — A judgment will not be re- versed because of an erroneous in- struction, if the proper result has been obtained, and the finding of the jury shows that the party com- plaining of the instruction has not been harmed. Illinois. Keegan v. Kinnare, 123 111. 280; Kulpinsky v. Sampsell, 145 111. App. 242; Williams v. John Davis Co., 54 111. App. 198; Chicago City By. Co. v. Hastings, 35 111. App. 434, aff 'd 136 111. 251. Indiana. Indianapolis Traction & Terminal Co. v. Menze, 173 Ind. 31; Lemmon v. Moore, 94 Ind. 40; Pittsburgh, C, C. & St. L. Ry. Co. v. Welch, 12 Ind. App. 433; Coppage v. Gregg, 1 Ind. App. 112. Kansas. Bigelow v. Wygal, 52 Kan. 619, 35 Pac. 200; Kansas City, Ft. S. & G. R. Co. v. Hay, 31 Kan. 177, 1 Pac. 766. Nebraska. Liberty Ins. Co. v. Ehrlich, 42 Neb. 553. New Hampshire. Hoitt v. Hol- comb, 32 N. H. 186; Wendell v. Moulton, 26 N. H. 41; March v. Portsmouth & C. R. R., 19 N. H. 372. North Carolina. Revis v. City of Raleigh, 150 N. C. 348. New York. Fogal v. Page, 59 Hun 625. § 438] Exceptions and Objections — Review. 999 on applicable instructions should be accurate, 67 but a judg- ment will not be reversed for erroneous instructions as to damages if the verdict shows that the error did not affect the result. 68 § 438. Error harmless in view of evidence. The evidence brought up in the record may be considered in determining the correctness of a charge, and in deter- mining whether error was prejudicial. 69 Error in giving or refusing instructions is not ground for reversal, where, under the evidence, the result could not have been different had such error not been committed. 70 But where an erro- neous charge may have influenced the verdict, the judgment must be reversed, although the evidence may be sufficient Ohio. Kuchenmeister v. O'Con- nor, 11 Cine. L. Bui. 120. 67 — Schleuter v. Sherman Bros. & Co., 169 111. App. 386. 68 — Error as to measure of dam- ages is harmless, where the amount of the verdict shows that the jury did not follow the erroneous direc- tion. Keeler v. Herr, 157 111. 57. Error in an instruction as to ex- emplary damages is harmless to the plaintiff, where the plaintiff was not entitled to even actual damages. Meyers v. Wright, 44 Iowa 38. See also, Marcum v. Missouri, K. & T. B. Co., 139 Mo. App. 217. An instruction as to the measure of damages cannot be regarded as prejudicial error, where it allows no less than the correct rule would warrant. Hubbell v. Blandy, 87 Mich. 209, 24 Am. St. Eep. 154. 69 — Bradshaw v. Mayfield, 18 Tex. 21; Texas & P. Ey. Co. v. Neill (Tex. Civ. App.) 30 S. W. 369. 70 — Arkansas. Kansas City Southern E. Co. v. Carl, 91 Ark. 97, 134 Am. St. Eep. 56; Jachary v. Pace, 9 Ark. 212, 47 Am. Dec. 744. California. Kirk v. Santa Bar- bara Ice Co., 157 Cal. 591, 108 Pac. 509; Hughes v. Wheeler, 76 Cal. 230, 18 Pae. 386; People v. Eiley, 75 Cal. 98, 16 Pac. 544. Georgia. Sellers v. State, 99 Ga. 212. Illinois. Scott v. Parlin & Oren- dorff Co., 245 111. 460; Chicago & E. I. E. Co. v. Kneirim, 152 111. 458, 43 Am. St. Eep. 259; Cusick v. Camp- bell, 68 111. 508; Dodd v. Fruit Grow- ers Eefrigerating & Power Co., 147 111. App. 152; Board of Sup'rs of Logan Co. v. People, 17 111. App. 49; O'Halloran v. Kingston, 16 111. App. 659. Indiana. Dehority v. Paxson, 97 Ind. 253; Jones v. State, 78 Ind. 217; Hayden v. Souger, 56 Ind. 42, 26 Am. Eep. In; Stipp v. Spring Mill & Williams Creek Gravel E. Co., 54 Ind. 16; Morford v. Woodworth, 7 Ind. 83; Nichols v. Central Trust Co., 43 Ind. App. 64. Iowa. First Nat. Bank v. Breese, 39 Iowa 640; Farwell v. Salpaugh, 32 Iowa 582. Kansas. Monroe v. City of Law- 1000 Instructions to Juries. [§438 to support the verdict, or may even preponderate in its, favor. 71 - So, where an instruction is predicated upon a case which the evidence tends to prove, and is correct, its refusal is ground for reversal, although a verdict for the other party may be sustained by the evidence. 72 Where the evidence would not support a verdict and renee, 44 Kan. 607, 10 L. R. A. 520, 24 Pac. 1113. Kentucky. Town of West Coving- ton v. Schultz, 16 Ky. L. Rep. 831. Maryland. Thurston v. Lloyd, 4 Md. ,283. Massachusetts. Com. v. Bishop, 165 Mass. 148. Michigan. Cartier v. Douville, 98 Mich. 22; Schisler v. Null, 91 Mich. 321; Tubbs v. Dwelling House Ins. Co., 84 Mich. 646; Johnston v. Davis, 60 Mich. 56; Seymour v. Detroit Copper & Brass Rolling Mills, 56 Mich. 117; Sheehan v. Dalrymple, 19 Mich. 239; Sinclair v. Murphy, 14 Mich. 392; Cummings v. Stone, 13 Mich. 70; Clark v. Moore, 3 Mich. 55. Missouri. Quinn v. Metropolitan St. R. Co., 218 Mo. 545; State v. Donnelly, 130 Mo. 642; State v. Cun- ningham, 130 Mo. 507. Ohio. Earl's Lessee v. Shoulder, 6 Ohio 409; Reed v. McGrew, 5 Ohio 375;/ Courcier v. Graham, 1 Ohio 330; Chase v. Washburn, 1 Ohio 244; Murphy v. Hagerman, Wright (Ohio) 293. Oklahoma. Shawnee Nat. Bank v. Wooten, 24 Okla. 425, 103 Pac. 714. Pennsylvania. Trexler v. Green- wich Tp., 168 Pa. St. 214; Udderzook v. Harris, 140 Pa. St. 236; Boyle v. Hazleton, 8 Kulp 239. South Carolina. McCord v. Black- well, 31 S. C. 125. South Dakota. Kime v. Bank of Edgemont, 22 S. D. 630. Texas. Lang v. Dougherty, 74 Tex. 226; Bullock v. Smith, 72 Tex. 545; Hussey v. Moser, 70 Tex. 42; Carter v. Eames, 44 Tex. 544; Cox v. State, 41 Tex. 1; Montgomery v. Amsler, 57 Tex. Civ. App. 216; Har- ris v. State, 37 Tex. Cr. App. 441; West v. State (Tex. Cr. App.) 33 S. W. 227; Dawson v. Sparks, 1 Posey, Unrep. Cas. (Tex.) 735. Virginia. Bernard v. Richmond, P. & P. R. Co., 85 Va. 792, 17 Am. St. Rep. 103; Snouffer's Adm'r v. Hansbrough, 79 Va. 166; Colvin v. Menefee, 11 Gratt. 87. Washington. Aris v. Mutual Life Ins. Co., 54 Wash. 269, 103 Pac. 50 West Virginia. Butcher v. Som merville, 67 W. Va. 261; Beaty v Baltimore & O. R. Co., 6 W. Va. 388 Wyoming. Miller v. State, 3 Wyo 657, 29 Pac. 136. 71 — State v. Empey, 79 Iowa 460 People v. Van Zile, 143 N. Y. 368; Dwyer v. Continental Ins. Co., 57 Tex. 181; Dunham v. Orange Lum- ber Co., — Tex. Civ. App. — , 125 S. W. 89; Willis v. Kirbie, 1 Posey, Unrep. Cas. (Tex.) 304; Franklin v. Smith, 1 Posey, Unrep. Cas. (Tex.) 229; What Cheer Coal Co. v. John- son, 6 C. C. A. 148, 56 Fed. 810. But see Louisville, N. A. & C. Ry. Co. v. Nicholai, 4 Ind. App. 119; Seay v. Diller (Tex.) 16 S. W. 642. 72 — Baltimore & O. R. Co. v. Skeels, 3 W. Va. 556. §438] Exceptions and Objections — Review. 1001 judgment for the appellant, error in the instructions is im- material as to him, and not ground for reversal. 73 Thus, a refusal to charge on the doctrine of reasonable doubt or error in the charge is not ground for reversal, where the state of the evidence is such as to leave no reasonable 73 — Alabama. Cowen v. Earth- erly Hardware Co., 95 Ala. 324. Arkansas. Taylor v. Eobinson, 94 Ark. 560. Florida. Prank v. Williams, 36 Fla. 136. Illinois. Herrin & S. R. Co. v. Nolte, 243 111. 594; Johnson v. Illi- nois Cent. R. Co., 61 111. App. 522; Dwelling House Ins. Co. v. Dowdall, 55 111. App. 622; Carey -Lombard Lumber Co. v. Hunt, 54 111. App. 314. Indiana. Evansville & T. H. R. Co. v. Berndt, 172 Ind. 697; Swaim v. Swaim, 134 Ind. 596; State v. Caldwell, 115 Ind. 6; Winchester Wagon Works & Mfg. Co. v. Carman, 109 Ind. 31, 58 Am. Rep. 282n; Wolfe v. Pugh, 101 Ind. 293; Standard Oil Co. v. Bretz, 98 Ind. 231; Newcomer v. Hutehings, 96 Ind. 119; Mussel- man v. Wise, 84 Ind. 248; Simmon v. Larkin, 82 Ind. 385. Iowa. Clark v. Johnson County Tel. Co., 146 Iowa 428; Churchill v. Gronewig, 81 Iowa 449. Michigan. Hatt v. Evening News Ass'n, 94 Mich. 114; Wintermute v. Torrent, 83 Mich. 555; Williams v. City of Grand Rapids, 59 Mich. 51; Parker v. Fields, 48 Mich. 251; Worth v. McConnell, 42 Mich. 473; Louden v. East Saginaw, 41 Mich. 18; McDonough v. Sutton, 35 Mich. 1; Houghton Co. Sup'rs v. Rees, 34 Mich. 481. Mississippi. Clymer v. Cameron, 55 Miss. 593. Missouri. State v. Cunningham, 130 Mo. 507; Greer v. Lafayette Co. Bank, 128 Mo. 559; Sessinghaus v. Knoche, 137 Mo. App. 323. Ohio. Mehurin v. Stone, 37 Ohio St. 49. Pennsylvania. Eister v. Paul, 54 Pa. St. 196; Girard Fire & Marine Ins. Co. v. Stephenson, 37 Pa. St. 293, 78 Am. Dec. 423; Houser v. Lightner, 42 Leg. Int. 289; Malson v. Fry, 1 Watts 433; Strawbridge v. Cartledge, 7 Watts & S. 394. Rhode Island. Collier v. Jenks, 19 R. I. 493. Tennessee. Jones v. Cherokee Iron Co., 14 Lea 157; Harrison v. Morton, 2 Swan 461; Neddy v. State's Lessee, 8 Yerg. 249. Texas. Gulf, C. & S. F. Ry. Co. v. Ward, — Tex. Civ. App. — , 124 S. W. 130; Blackman v.' Houssels (Tex. Civ. App.) 35 S. W. 511; Turner v. Ft. Worth & D. C. Ry. Co. (Tex. Civ. App.) 30 S. W. 253. Washington. La Bee v. Sultan Logging Co., 59 Wash. 341, 109 Pac. 1023. West Virginia. Butcher v. Som- merville, 67 W. Va. 261; Mercer Academy v. Rusk, 8 W. Va. 373. Wisconsin. Chase v. Woodruff, 138 Wis. 641; Rose v. Bradley, 91 Wis. 619; Fairfield v. Barrette, 73 Wis. 463. United States. Texas & P. Ry. Co. v. Nolan, 11 C. C. A. 202, 62. Fed. 552. See also, § 196, ante. 1002 Instbtjctions to Jueies. [§438 doubt. 74 The assumption of facts conclusively proven or admitted, or a failure to require the jury to find such facts, is not reversible error. 75 And where the judgment is for the plaintiff, error in the charge as to the defense, or any particular branch of it, is harmless, and not ground for reversal, if it clearly appears that such defense or branch of it is not sustained by the evidence. 76 74 — McGuire v. State, 37 Miss. 369; Edelhoff v. State, 5 Wyo. 19, 36 Pac. 627. 75— St. Louis, I. M. & S. E. Co. v. Hudson, 95 Ark. 506; Hefling v. Van Zandt, 162 111. 162; St. Louis, A. & T. H. E. Co. v. Holman, 155 111. 21; Tomlinson v. Briles, 101 Ind. 538; Drum v. Stevens, 94 Ind. 181; In- dianapolis & St. L. E. Co', v. Stout, 53 Ind. 143; Corcoran v. City of Detroit, 95 Mich. 84; Missouri, K. & T. Ey. Co. of Texas v. Farris, — Tex. Civ. App. — , 120 S. W. 535. 76— Alabama. Poull & Co. v. Foy- Hays Const. Co., 159 Ala. 453. Illinois. Joliet Steel Co. v. Shields, 146 111. 603. Indiana. Louisville, N. A. & C. Ey. Co. v. "Wright, 115 Ind. 378, 7 Am. St. Eep. 432. Iowa. Greenlee v. Ealy, 145 Iowa 394; Brentner v. Chicago, M. & St. P. Ey. Co., 68 Iowa 530. Kansas. Atchison, T. & S. P. E. Co. v. Love, 57 Kan. 36, 45 Pac. 59; City of Clay Centre v. Jevons, 2 Kan. App. 568, 44 Pac. 745. Missouri. Grant v. Tomlinson, 138 Mo. App. 222; Lindsay v. Kan- sas City, Ft. S. & M. E. Co., 53 Mo. App. 11; Goodwin v. Kansas City, Ft. S. & M. E. Co., 53 Mo. App. 9. Montana. John v. Northern Pac. E. Co., 42 Mont. 18, 32 L. E. A. (N. S.) 85, 111 Pac. 632. Texas. Pullman Palace Car Co. v. Smith, 79 Tex. 468, 13 L. E. A. 215, 23 Am. St. Eep. 356; Hilliard v. Johnson (Tex. Civ. App.) 32 S. W. 914; Gulf, C. & S. F. Ey. Co. v. Higby (Tex. Civ. App.) 26 S. W. 737. See also, cases cited post this note. Washington. La Bee v. Sultan Logging Co., 59 Wash. 341, 109 Pac. 1023. An improper instruction as to the degree of care to be exercised by a person to avoid injiiry is harmless error, where the evidence shows no contributory negligence. Gulf, C. & S. F. Ey. Co. v. Higby (Tex. Civ. App.) 26 S. W. 737. An error in the charge upon con- tributory negligence by the plaintiff is not material when there was no testimony to show contributory neg- ligence, and no injury resulted. Louisville, N. A. & C. Ey. Co. v. Wright, 115 Ind. 378, 7 Am. St. Eep. 432; Atchison, T. & S. F. E. Co. v. Love, 57 Kan. 36, 45 Pac. 59; City of Clay Centre v. Jevons, 2 Kan. App. 568, 44 Pac. 745; Weiden v. Brush Electric Light Co., 73 Mich. 268; Pullman Palace Car Co. v. Smith, 79 Tex. 468, 13 L. E. A. 215. Error in defining "fellow serv- ants" is immaterial, where the em- ployee in question was not a fellow- servant. Joliet Steel Co. v. Shields, 146 111. 603. See also, Austin Eapid Transit Co. v. Grothe, 88 Tex. 262. 439] Exceptions and Objections — Review. 1003 § 439. Error in appellant's favor. Errors in instructions wh?ch favor the party objecting are not ground for reversal. This rule is elementary and is supported by an almost innumerable number of decisions, only a few of which are cited. 77 Accordingly, a refusal of 77 — Alabama. Green & Sons v. Lineville Drug Co., 167 Ala. 372; Kansas City, M. & B. R. Co. v. Crocker, 95 Ala.- 412; Salmons v. Roundtree, 24 Ala. 458. Arkansas. Jones v. Dyer, 92 Ark. 460. California. People v Sternberg, 111 Cal. 3, 43 Pac. 198; McNamara v. MacDonough, 102 Cal. 575, 36 Pac. 941; McKeever v. Market St. R. Co., 59 Cal. 294; Roberts v. Sierra R. Co. of California, 14 Cal. App. 180, 111 Pac. 519, 527; Skrocki v. Stahl, 14 Cal. App. 1, 110 Pac. 957. Colorado. Grimes v. Greenblatt, 47 Colo. 495, 19 Ann. Cas. 608, 107 Pac. 1111; Denver City Tramway Co. v. Wright, 47 Colo. 366, 107 Pac. 1074; De St. Aubin v. Marshall Field & Co., 27 Colo. 414, 62 Pac. 199; Leitensdorfer v. King, 7 Colo. 436, 4 Pac. 37; Smith v. Ramer, 6 Colo. App. 177, 40 Pac. 151. Connecticut. Daggett v. Whiting, 35 Conn. 372. Florida. Louisville & N. R. Co. v. Willis, 58 Fla. 307; Marshall v. State, 32 Fla. 462. Georgia. McTyier v. State, 91 Ga. 254; Partee v. Georgia R. Co., 72 Ga. 349; Atkins v. Paul, 67 Ga. 97; McCoy v. State, 15 Ga. 205; South- ern R. Co. v. Robertson, 7 Ga. App. 154. Illinois. Zeman v. North Ameri- can Union, 263 111. 304; People v. Hotz, 261 111. 239; Morton v. Gate- ley, 1 Scam. 211; Grier v. Barkley, 182 HI. App. 541; Wabash, St. L. & P. Ry. Co. v. Shacklett, 10 111. App. 404. Indiana. In re Darrow, 175 Ind. 44; Cline v. Lindsey, 110 Ind. 337; Bronnenberg v. Coburn, 110 Ind. 169; Barnett v. State, 100 Did. 171; Ferguson v. Hosier, 58 Ind. 438; Bissot v. State, 53 Ind. 408; Balti- more & O. R. Co. v. Countryman, 16 Ind. App. 139; Eddingfield v. State, 12 Ind. App. 312. Iowa. Tuffree v. Saint, 147 Iowa 361. Kansas. State v. United States Fidelity & Guaranty Co., 81 Kan. 660, 26 L. R. A. (N. S.) 865n, 106 Pac. 1040; Kansas City, Ft. S. & G. Ry. Co. v. Lane, 33 Kan. 702, 7 Pac. 587; State v. Potter, 15 Kan. 302; State v. Dickson, 6 Kan. 309. Kentucky. Tibbs v. Common- wealth, 138 Ky. 558, 28 L. R. A. (N. S.) 665n. Maine. Lime Rock Bank v. Hew- ett, 52 Me. 531; Philbrook v. Bur- gess, 52 Me. 271. Maryland. Benson v. Atwood, 13 Md. 20, 71 Am. Dec. 611. Massachusetts. Com. v. Houle, 147 Mass. 380. Michigan. Langworthy v. Green Tp., 95 Mich. 93; Towle v. Ionia, Eaton & Barry Farmers' Mut. Fire Ins. Co., 91 Mich. 219; Bull v. Brock- way, 48 Mich. 523; Comstock v. Smith, 20 Mich. 338; Brigham v. Gurney, 1 Mich. 349. Mississippi. Darcy v. Spivey, 57 Miss. 527. Missouri. Lindsey v. Stephens, 1004 Instructions to Juries. [§439 a requested instruction which operates to the benefit of the appellant is not ground for reversal, 78 and it cannot avail 229 Mo. 600; State v. Bumfelt, 228 Mo. 443; State v. Berkley, 109 Mo. 665; State v. Buehler, 103 Mo. 203; Harrington v. City'of Sedalia, 98 Mo. 583; State v. Stewart, 90 Mo. 507; State v. O'Gorman, 68 Mo. 179; Houx v. Batteen, 68 Mo. 84; Knittel v. United Eys. Co. of St. Louis, 147 Mo. App. 677; Ball v. City of Inde- pendence, 41 Mo, App. 469; Vail v. Kansas City, C. & S. Ey. Co., 28 Mo. App. 372; Mangold v. St. Louis, I. M. & S. B. Co., 24 Mo. App. 52. Montana. Poor v. Madison Eiver Power Co., 41 Mont. 236, 108 Pae. 645. Nebraska. McCary v. Stull, 44 Neb. 175; City of Lincoln v. Gillilan, 18 Neb. 114. Nevada. State v. Little, 6 Nev. 281. New Hampshire. Fowler v. Tut- tle, 24 N. H. 9. North Carolina. Stern v. Benlow, 151 N. C. 460; State v. Alston, 113 N. C. 666; Cowles v. Hall, 90 N. C. 330; Lutz v. Yount, 61 N. C. 367; Bay v. Lipscomb, 48 N. C. 185; Reynolds v. Magness' Ex'rs, 24 N. C. 26. Ohio. McClintock v. Chamberlin, Wright, 547. Oklahoma. Chicago, B. I. & P. E. Co. v. Johnson, 25 Okla. 760, 27 L. E. A. (N. S.) 879, 107 Pac. 662; Hun- ter v. State, 3 Okla. Or. 533, 107 Pac. 444. Oregon. Moorhouse v. Donaca, 14 Ore. 430. Pennsylvania. Brown v. Caldwell, 10 Serg. & E. 114, 13 Am. Dec. 660; Collins v. Bush, 7 Serg. & E. 147; Mcllvaine v. Mcllvaine, 6 Serg. & E. 559. South Carolina. Bowen v. Johns- ton, 87 S. C. 250, 264; Oliver v. Sale, 17 S. C. 587. Tennessee. Nashville & C. B. Co. v. Smith, 6 Heisk. 174; McNairy v. Thompson, 1 Sneed 141. Texas. Producers Oil Co. v. Barnes, 103 Tex. 515; Wright v. State, 41 Tex. 246; Cocker v. State, 31 Tex. 498; Barbee v. Hail, 31 Tex. 161; Warren v. Smith, 24 Tex. 484, 76 Am. Dec. 115; Mercer v. Hall, 2 Tex. 284; Templeton v. State, 5 Tex. App. 398; Powell v. State, 5 Tex. App. 234; Davis v. State, 6 Tex. App. 133; Gulf, C. & S. F. By. Co. v. Duvall, 12 Tex. Civ, App. 348; St. Louis Southwestern By. Co. of Texas v. Taylor, — Tex. Civ. App. — , 123 S. W. 714; International Building & Loan Ass'n v. Fortassain (Tex. Civ. App.) 23 S. W. 496; Schuh v. State,. 58 Tex. Or. App. 165; Joy v. State, 57 Tex. Cr. App. 93; Loggins v. State, 32 Tex. Cr. App. 364. Virginia. Proctor v. Spratley, 78 Va. 254. Wisconsin. Kortendick v. Town of Waterford, 142 Wis. 413. 78 — Colorado. Grimes v. Green- blatt, 47 Colo. 495, 19 Ann. Cas. 608, 107 Pac. 1111. Iowa. Harris v. Beebe, 144 Iowa 735. Missouri. State v. Mitchell, 98 Mo. 657. Pennsylvania. Deal v. Bogue, 20 Pa. St. 228, 57 Am. Dec. 702; Werk- heiser v. Werkheiser, 6 Watts & S; 184. Tennessee. State v. Parker, 13 Lea 221. Texas. Fort Worth & D. C. By. § 439] Exceptions and Objections — Beview. 1005 a defendant in a criminal case that the court erred in allow- ing the prosecuting attorney to withdraw a charge after the court has determined to give it, and has so indorsed on the request, if the instruction is as favorable to the pros- ecution as the law admits of its being, and is correct in every respect. 79 The modification of a* requested instruc- tion is also harmless error, where, as modified, it requires the other party, in order to sustain his case, to prove more than the instruction, as offered, required. 80 In giving instructions it has been held that an appellant can not complain where the court improperly submits a question of law to the jury, which should have been decided against the party complaining; 81 requires the adverse party to prove more than he ought to be required to prove in order to make out his case ; 82 or to establish his de- Co. v. Mackney, 83 Tex. 410; Mis- souri, K. & T. Ey. Co. v. Cook, 12 Tex. Civ. App. 203; Dickinson Creamery Co. v. Lyle, — Tex. Civ. "App. — , 130 S. W. 904. Wisconsin. Stennett. v. Bradley, 70 Wis. 278. As, for instance, where an instruc- tion given by the court is more fa- vorable to the party complaining than the one refused. State v. Mitchell, 98 Mo. 657; Fort Worth & D. C. Ey. Co. v. Mackney, 83 Tex. 410. Thus, a refusal to instruct that plaintiff must establish his case by a preponderance of the evidence is harmless to defendant, where the court instructs that plaintiff must establish his case by a "fair" pre- ponderance of the evidence. De St. Aubin v. Marshall Field & Co., 27 Colo. 414, 62 Pac. 199. Where a plaintiff proposes correct instructions as to certain defenses, asserted by the defendant, but the court says they are not in the case, and refuses to give them, plaintiff is benefited, rather than harmed. Stennett v. Bradley, 70 Wis. 278. 79— Bonner v. State, 107 Ala. 97. 80— State v. O'Gorman, 68 Mo. 179. 81— Taylor v. Kelly, 31 Ala. 59, 68 Am. Dee. 150; Millard's Adm'rs v. Hall, 24 Ala. 209; Stanley v. Bank of Mobile, 23 Ala. 652; Courtland v. Tarlton, 8 Ala. 532; Towle v. Ionia, Eaton & Barry Farmers' Mut. Fire Ins. Co., 91 Mich. 219; Smith v. Southern Ey., 87 S. C. 136. ' ' If the court, after deciding a question of law, against the plaintiff, refuses to instruct the jury, on his request, that they have nothing to do with the decision of that ques- tion, thereby impliedly admitting their right to revise its decision, the refusal of the charge gives the plain- tiff an additional chance for a ver- dict, and is therefore no cause of re- versal." Wyatt's Adm'r v. Steele, 26 Ala. 640. 82 — Baltimore & O. E. Co. v. Countryman, 16 Ind. App. 139; Houx 1006 Instructions to Jtjeies. [§439 f ense ; 83 instructs outside of the issues, but in favor of the party complaining ; 84 omits certain elements of the case ; 85 or assumes a fact to exist that is in favor of the party com- plaining. 86 And an appellant cannot complain that the jury were not fully instructed where all the instructions asked by him were given. 87 So, in criminal cases it has been held that no objection can be made where the court permits a con- viction of a lesser offense than the evidence warrants, 88 or eliminates from the case a paragraph of the complaint, defendant appealing, 89 or expresses the opinion that the accused is not guilty of the crime charged. 90 But error in giving confusing and misleading instructions is not cured v. Batteen, 68 Mo. 84; Collier v. X/angan & Taylor Storage & Moving Co., — Mo. App. — , 127 S. W. 435; McClary v. Stull, 44 Neb. 175; War- ren v. Smith, 24 Tex. 484, 76 Am. Dee. 115; Gulf, C. & S. F. By. Co. v.- Duvall, 12 Tex. Civ. App. 348. Where the defense of contributory negligence is not presented by the pleadings, no injury can result to de- fendant by submitting to the jury the question whether plaintiff was guilty of negligence, as he gets the benefit of a defense which has not been set up. Kansas City, M. & B. E. Co. v. Crocker, 95 Ala. 412. > 83 — Daggett v. Whiting, 35 Conn. 372; Harrington v, City of Sedalia, '98 Mo. 583. 84 — Terrapin v. Barker, 26 Okla. 93, 109 Pae. 931; Moorhouse v. Don- aca, 14 Ore. 43Q, 13 Pac. 112. 85 — Rogers v. Rollins, 185 111. App. 153. 86 — Ferguson v. Hosier, 58 Ind. 438; Greenway v. Turner, 4 Md. 296. "The party appealing cannot, in this court, object to a prayer that it assumes a fact which was admitted at the trial, and which admission was made for his benefit." Inloes v. American Exch. Bank, 11 Md. 173, 69 Am. Dee. 190. 87— Grier v. Barkley, 182 111. App. 541. 88— McTyier v. State, 91 Ga. 254; State v. Alston, 113 N. C. 666; Tem- pleton v. State, 5 Tex. App. 398;_ Powell v. State, 5 Tex. App. 234." See State v. Berkley, 109 Mo. 665 and Joy v. State, 57 Tex. Cr. App. 93. If the instructions complained of relate to a degree of crime inferior to the offense charged in the indict- ment or information, and inferior to that of which the defendant is guilty, they will be deemed not to have prejudiced the defendant, whether erroneous or not. State v. Potter, 15 Kan. 302; State v. Dick- son, 6 Kan. 209; State v. Buchler, 103 Mo. 203. A charge on the lesser offense of fornication is no ground for revers- ing a conviction of seduction. McTyier v. State, 91 Ga. 254. 89 — Bronnenburg v. Coburn, 110 Ind. 169. 90— State v. Little, 6 Nev. 281. § 439] Exceptions and Objections — Review. 1007 by the fact that their general tenor is unduly favorable to the appellant. 91 91 — Chicago, B. & Q. R. Co. v. Anderson, 38 Neb. 112. INSTRUCTIONS TO JURIES FORMS CHAPTEE XXXV. ABDUCTION. § 440. In general. § 441. — Georgia. § 442. — Kentucky. § 443. — North Carolina. § 444. Person having control of female — Uncle. § 445. Taking or enticement — Necessity. § 446. — In general. § 447. — Georgia. § 448. — Tennessee. § 449. Same — What constitutes. § 450. Same — When not against will of parents. § 451. Intent in, or purpose of taking — In general. §452. — Illinois. § 453. — Iowa. § 454. — Massachusetts. § 455. — Missouri. § 456. — New York. § 457. Same — Necessity of accomplishment. § 458. Defenses — Belief of defendant that female over statutory age. § 459. Same — Want of chastity in female. § 460. Evidence — Presumptions and burden of proof — Chastity of female. Cross-Eeferences. Kidnapping, see Kidnapping; matters pertaining to law of crime in general, see CKiMiNAii Law; seduction, see Seduction; statutory rape, see Rape. § 440. In general. §441. — Georgia. The court instructs the jury that if you believe the accused was a married man, and induced the girl to go away with him, with- out the consent of her parents, under a false and fraudulent prom- (1009) Blashfield Vol. 1—64 1010 Foems of Instructions. [§ 441 ise of marriage and for the purpose of having illicit sexual intercourse with her, he would be guilty. 1 § 442. — Kentucky. The court instructs the jury that if they believe from the evidence beyond a reasonable doubt that the defendant, , in County, , before ■ [date], did unlawfully, wilfully and feloniously take and detain , a female, and not the wife of him the said , against her will, with intent to have carnal knowl- edge with her, they should find the defendant guilty and fix his punishment at confinement in the state penitentiary for a period of time not less than nor more than years, in their dis- cretion. 2 § 443. — North Carolina. The court instructs the jury that they must be satisfied beyond a reasonable doubt that the girl was under years, that she was residing with her father, and that the defendant took and car- ried her away, not only against his will and without his consent, but that the taking and carrying of the child was by the defend- ant's force, fraud, persuasion, or other inducement, exercising a controlling influence upon her conduct; that, if he merely per- mitted her to go with him and his family and gave her his active assistance, that of itself would not make him guilty ; that abduction is the taking and carrying of a child, ward, etc., either by fraud, persuasion, or open violence; that the consent of the child is no defense, but, if there was no inducement nor force, and the child departed from her father entirely voluntarily on her part, the defendant was not guilty of abduction; that, should the jury find that the girl was taken away by the defendant against her father's will and without his consent, the defendant cannot be convicted, unless the jury should go further and find beyond a reasonable doubt that the girl was carried away by the 1— Carter v. State, 14 Ga. App. 2— Smith v. Com. (Ky.) 127 S. W. 51. 790. § 449] Abduction. 1011 force or fraud, or induced to go by the persuasion, of the de- fendant. 3 - § 444. Person having control of female — Uncle. The jury are instructed that if the female was living in the family of her uncle as a member of his family and had no par- ent or guardian in the state and was wholly under the protection and care of said uncle, then she was under the control of said uncle within the statute provided she was under years of age and there by the consent of her parents, which consent may be proved by the relationship of the family and the length of time she had been there in the absence of other testimony. 4 § 445. Taking or enticement — Necessity. § 446. — In general. The court instructs the jury that to constitute abduction the female must have been taken or enticed away by defendant and if she went of her own free will without enticement or persuasion by him he is not guilty, but neither force nor fraud need have been used. If the female was induced to go by solicitation and enticement it is sufficient. 5 § 447. — Georgia. The court instructs the jury that if the girl went away willingly and knowingly, for the purpose of having illicit relations with the accused, even without her father's consent, the accused would not be guilty. 6 § 448. — Tennessee. The court instructs the jury that, if she went to the store of her own accord, without being induced or persuaded by _defendant, and there agreed to intercourse, he would not be guilty. 7 § 449. Same — What constitutes. The jury are instructed that if defendant induced the woman to leave her home and go with him by presents and solicitation 3— State v. Burnett, 142 N. C. 577. v. Plath, 100 N. Y. 590, 53 Am. Rep. 4— State v. Ruhl, 8 Iowa 447. See 236; Sencker v. People, 88 N. Y. 192. State v. Round, 82 Mo. 679. 6— Carter v. State, 14 Ga. App. 5— Slocum v. People, 90 111. 274; 51. State v. Jamison, 38 Minn. 21; People 7 — South v. State, 97 Tenn. 496. 1012 Fobms of Instructions. [§ 449 and being moved by such inducements she did go he is guilty of "taking" her away. 8 § 450. Same — When not against will of parents. If the jury believe from the evidence that the parents of the female alleged to have been abducted encouraged her by their con- duct in a lax course of life, permitted her to be out alone at night and to attend places of questionable repute, the enticement of the girl away from them for the purpose named in the statute cannot be said to be against their will though they never actually knew of or consented to it, and defendant must be acquitted. 9 § 451. Intent in, or purpose of taking — In general. §452. —Illinois. The jury are 'instructed that the taking, if any, must have been for the purpose of concubinage and a taking for the purpose of a single act of sexual intercourse is not sufficient. But no par- ticular continuance of illicit intercourse is necessary to constitute concubinage. That relation is formed when a woman consents to unlawfully cohabit with a man generally as though the marriage relation existed between them. 10 §453. —Iowa. The court instructs the jury that if the defendant only intended to obtain the body of the said A, for his own personal carnal enjoyment, and no more, then the act did not amount to her prostitution, in the sense of the law. 11 §454. — Massachusetts. The jury are instructed that prostitution means common indis- criminate sexual intercourse with men, and if defendant took the female from her home for the sole purpose of having sexual inter- course with her himself, he is not guilty. 12 8 — State v. Johnson, 115 Mo. 480. 10— Henderson v. People, 124 111. 9— Regina v. Primalt, 1 F. & F. 50. 607, 7 Am. St. Eep. 391. See also, State v. Stone, 106 Mo. 1. 11— State v. Ruhl, 8 Iowa 447. This instruction is probably appli- 12 — Com. v. Cook, 53 Mass. 93. cable only where the statute states See State v. Osborn, 52 Ind. 526; that the taking must be "against State v. Stoyell, 54 Me. 24, 89 Am the will" of the parent or guardian. Dec. 716. §457] Abduction. 1013 §455. — Missouri. The court instructs the jury that by the word "concubinage," as used in the information and in these instructions, is meant the act or practice of a man cohabiting in sexual intercourse with a woman — a female with whom he is not married. If the jury be- lieve and find from the evidence that the defendant, , did take the prosecuting witness, , from her father and that she was at the time a female under the age of years, for the purpose of cohabiting with her in sexual intercourse for any length of time for more than one single act of sexual inter- course, then the defendant is guilty of the crime charged in the information. If you find that the defendant did not so take the said from her father, or did not take her for the purpose or with the intent to practice sexual intercourse with her, as explained in these instructions, or if you find that said was at the time years of age or over, then the defendant is not guilty of the crime charged, and you will so find. 13 §456. —New York. The court instructs the jury that the question is: "What did they go up there for? "Was the intent of this defendant honor- able? Is there any evidence in this case from beginning t* end that*it was honorable? Has there been any evidence offered m this case to explain the reason why he was up there at that hour? 14 § 457. Same — Necessity of accomplishment. The court instructs that if the jury believe from the evidence ^hat the defendant took or enticed the female from the control of her parents [or from the person having lawful charge of her] for the purpose of prostitution for whatever the statutory pur- pose may be] the offense was thereby completed and it was not needful that illicit sexual intercourse be had with her. 15 13— State v. Baldwin, 214 Mo. 290. 15— Henderson v. People, 124 111. 14— People v. Smith, 114 App. 607, 7 Am. St. Eep. 391; Berger v. Div. (N. Y.) 513, 20 N. Y. Cr. 307. People, 86 N. Y. 369. 1014 Forms of Instructions. [§458 §458. Defenses — Belief of defendant that female over statutory age. The jury are instructed that under the statute the female abducted must at the time have been less than years of age, but if the jury find that she was in fact under such age, the fact that defendant had good reason to believe and did believe that she was over such age is no defense. 16 § 459. Same— Want of chastity in female. The court instructs the jury that even if they should find that the prosecuting witness, , was of unchaste character, and had previously had sexual intercourse with the defendant, yet that state of facts did not constitute any defense to this action or prosecution. 17 The court instructs the jury that if you find beyond a rea- sonable doubt that the girl was living with her parents a chaste and virtuous life towards all others except defendant, and de- fendant wilfully took her from her father without his consent, for the purpose of and intending to prostitute her, then he would be guilty as charged, although it might appear that, prior thereto, defendant had had sexual intercourse with her. 18 §460. Evidence — Presumptions and burden of proof — Chastity of female. The jury are instructed that though it is essential to' the offense that the female be of previous chaste character, her chastity is presumed, 3.nd need not be proved by the state, but the burden is on defendant to impeach it. 19 16 — State v. Johnson, 115 Mo. 480. State (Misis.) 18 So. 117. To the That ' ' one who entices away a f e- same effect see State v. Buhl, 8 male for the purpose of debauching Iowa 447. her is not relieved by the fact that 17 — State v. Baldwin, 214 Mo. he did not know her to be within 290. the age named in the statute" but 18 — South v. State, 97 Tenn. 496. that "it is the fact that she was 19 — Bradshaw v. People, 153 111. [within such age] that controls and 156. fixes the offense." See Riley v. CHAPTER XXXVI. ABORTION. § 461. Intent. § 462. — Illinois. § 463. — Massachusetts. § 464. Aiders and abettors. § 465. Defenses — Abortion due to natural causes. § 466. Same — Consent of female. § 467. Same — Danger to life of female— Threat of suicide. § 468. Same — Advice of physician. § 469. Indictment — Proof — Means or instrument used. § 470. Same — Same — Time of acts. § 471. Evidence — Extent. § 472. Questions for jury. Cross-Beferences. Criminal liability for death of female, see Homicide; matters pertaining to law of crime in general, see Criminal Law. §461. Intent. §462. -r Illinois. The jury are instructed that an intent to produce a miscarriage is essential, and therefore, if the jury believe from the evidence that defendant unlawfully assaulted and beat a pregnant woman and thereby caused a miscarriage he is not guilty if he did not intend to produce that result. 1 §463. — Massachusetts. The court instructs the jury that in order to authorize a con- viction the jury must be satisfied that there was an operation performed upon by the defendant, by thrusting an instrument up into her body and into her womb, with intent unlawfully thereby to procure her miscarriage, she being pregnant. 2 1— Slattery v. People, 76 111. 217. 2— Com. v. Snow, 116 Mass. 47. (1015) 1016 Fobms of Instructions. [§ 463 The court instructs the jury that it was not necessary for the government to prove that the act complained of was performed with the intention hy the defendant to kill and murder the child ; it was sufficient if it was done in the manner alleged, with intent to procure a miscarriage unlawfully. 3 § 464. Aiders and abettors. The jury are instructed that though they believe that an abortion was actually performed on and that defendant knowing of her intention to have the same performed accompanied her to the office of who performed the same, remaining in an adjoining room, such acts do not constitute a participation in the offense, and if defendant did not in any other manner aid, abet or encourage the operation he is not guilty. 4 § 465. Defenses — Abortion due to natural causes. The court instructs the jury that if you believe that A aborted from natural causes, or from any one of the several causes testified to by the medical witnesses in the case, then you should find the respondent not guilty. 5 The court instructs the jury that if you believe that A aborted by reason of the ordinary sickness and vomiting, aug- mented by the sickness and vomiting of a sea voyage, together with the nervous, mental excitement, fatigue, lack of nourish- ment, and the change of climate, then you should find the respondent not guilty. 6 § 466. Same — Consent of female. The court instructs the jury that if the defendant unlawfully used said instrument as alleged, for the purpose of procuring her miscarriage, it is sufficient to authorize his conviction under this indictment, though the jury are satisfied that the operation was 3 — Com. v. Snow, 116 Mass. 47. 6 — People v. Seaman, 107 Mich. 4— People v. McGonegal, 136 348, 61 Am. St. Rep. 326. N. Y. 62. 5 — People v. Seaman, 107 Mich. 348, 61 Am. St. Rep. 326. § 470] Abortion. 1017 performed by her procurement and with her consent, and that the evidence showed it was with her consent. 7 § 467. Same — Danger to life of female — Threat of suicide. The jury are instructed that the danger to the life of the mother which will justify the production of a miscarriage must be a danger arising from natural causes, and the fact that she has threatened to commit suicide unless the miscarriage is produced is no defense though defendant believed in good faith that she would carry out such threat. 8 § 468. Same — Advice of physician. The jury are instructed that if they believe from the evidence that a physician advised that the production of a miscarriage was necessary to save the life of the woman, and that defendant acted in good faith on such advice he must be acquitted though the physician was in fact mistaken as to the necessity. 9 § 469. Indictment — Proof — Means or instrument used. The court instructs the jury that if it is proven beyond a reasonable doubt that both drugs and instruments were used by the defendant to commit abortion, then the allegations of the indictment are proven so far as concerns the means and instru- mentalities alleged; and it is not necessary to prove beyond a reasonable doubt which was used, whether drugs or instruments, just so you are convinced beyond a reasonable doubt that one or both were used. 10 § 470. Same — Same — Time of acts. The court instructs the jury that it is not necessary that it should be proved that the acts complained of were on the day alleged; that the exact day is not material; and if the jury are satisfied that the defendant performed the operation on any day in the month of , it is sufficient as far as the day is material ; that if the jury are satisfied that the witnesses for the govern- 7 — Com. v. Snow, 116 Mass. 47. quired by statute. See Hatchard v. 8— Hatehard v. State, 79 Wis. 357. State, 79 Wis. 357. 9 — State v. Fitzporter, 93 Mo. 390. 10— Thomas v. State, 156 Ala. 166. In some states the concurring opinion of two physicians is re- 1018 Foems op Instructions. [ § 470 merit were in error as to the date stated by them, this is a proper matter to be considered upon the question of the degree of credjt they are entitled to as to other matters; and if this, either alone or in connection with other evidence, causes the jury so far to doubt as to their truth and the reliability of their testimony in other matters, that they are not satisfied beyond doubt that the defendant did perform the operation as alleged,' then they should acquit the defendant. 11 §471. Evidence— Intent. The court instructs the jury that the intent with which an, act is committed may be proved by direct and positive testimony, or such intent may be inferred from all the facts and circumstances surrounding and attending the act, as shown by the evidence in the case, and the intent with which the defendant used an instru- ment or instruments upon the private parts of the womb of said A, if you find that he did use it, or them, must be determined by you from the evidence given in this case. 12 § 472. Questions for jury. The court instructs the jury that as by the defendant's testimony it is confessed that he inserted into the bodies of each of the women named an instrument, which does not appear to have been known to the grand jury who found the indictment, on and on last, at , the only practical questions to be considered by the jury in relation to the and counts are, first, whether, at the time when this instrument was inserted into their bodies by defendant, the women were pregnant with child; and second, whether this instrument was thus inserted into the bodies of these women unlawfully, that is to say, without justification in law. As to these two questions, the jury are instructed that the allegations of the indictment, that an instrument was forced and thrust into the bodies of these women, are substantially and sufficiently proved by evidence that such instrument was inserted into their 11 — Com. v. Snow, 116 Mass. 47. 12— State v. De Groat, 259 Mo. 364. § 472] Abortion. 1019 bodies by any degree of mechanical force. As to the first question, the jury are instructed that the proof on the part of the prosecu- tion must be, that, at the time of the defendant's acts upon the bodies of said A and said B, they were pregnant with children which had vitality, so that in the course of nature they could mature into living children. The statute is intended to prevent and punish the destroying of embryo human life, the germs of human life before birth in the course of nature, and would not apply to acts to procure the miscarriage of a woman having a dead foetus in her womb. As to the second question affecting, the lawfulness of the defendant's acts, the jury are instructed that a physician may lawfully procure the miscarriage of a woman pregnant with child, by any means appropriate and reasonable for that purpose, directly or indirectly applied, if in so doing he acts in good, faith for the preservation of the life or health of such pregnant woman. The justification of a physician thus act- ing must depend upon his exercising his best skill and judgment, and in the honest belief that his acts directly applied to produce a miscarriage, or applied to the treatment of a disease so as to involve a miscarriage, as a not unusual incident of such treatment, are necessary to save such pregnant woman from great peril to her life or health. Acts for the purpose of procuring the mis- carriage of a woman pregnant with child, to be unlawful, need not be done in a spirit of wanton cruelty or wicked revenge ; but would be unlawful if done from any wicked, base or sordid motive, offensive to good morals or injurious to society. Such acts would be none the less unjustifiable because done by the consent or upon the solicitation of the pregnant woman whose miscarriage was attempted to be procured, or because done to screen such a woman from exposure or disgrace, or for gain or reward. The possession by a physician of surgical instruments adapted to use in procuring the miscarriage of pregnant women would be explained consistently with that physician's innocence of any intention to use them for unlawfully procuring miscar- riages, if they were instruments also adapted equally to other and legitimate uses in surgery or midwifery, unless their extraor- 1020 Foems of Instkuctions. [§ 472 diiiary number and variety was in more than ordinary pro- portion to the whole number and variety of surgical instruments possessed by him, or the exigencies of his practice furnished him occasions for using; but the significance as evidence, of the possession of any number or variety of surgical instruments adapted especially to procuring miscarriage of pregnant women, would more or less depend .upon circumstances, usual or unusual, ordinary or extraordinary, attending the mode of their possession and keeping, and the exigencies of such physician's practice. Inasmuch as A and B, by their solicitation of or consent to the acts of defendant, alleged to be unlawful, were severally implicated in these acts, and their unlawful and criminal charac- ter, that fact, may justly be considered by the jury as affecting their credibility as witnesses and the force and weight of their testimony. 13 13— Com. v. Brown, 121 Mass. 69. CHAPTER XXXVII. ACCORD AND SATISFACTION. § 473. Definition. § 474. Agreement of parties — Necessity in general. § 475. Same — Condition required to be attached to offer. § 476. Acceptance of sum less than amount claimed. § 477. — Indiana. § 478. — Nebraska. § 479. Acceptance of check or notes. § 480. Illinois. §481. —New York. § 482. Payment of interest admitted, and surrender of notes and mortgages. § 483. Compliance with condition attached. Cross-Beferences. v See Compromise and Settlement; Payment; Release. §473. Definition. The court instructs the jury that the only issue before them is the question of settlement between the plaintiffs and the defend- ant, pr, accord and satisfaction as set forth by the defendant in his answer, and that accord and satisfaction is an agreement between a creditor and his debtor, by which the creditor agrees to take and receive something from his debtor in lieu and satisfac- tion of his claim. If the property or thing to be given by the debtor to the creditor is received and accepted by the latter in settlement of his claim, it has the effect of payment, and extinguishes his claim. Anything valuable may be given by the debtor to the creditor, whether specific property or goods, or a transfer of claims or rights belonging to the debtor, (and if the jury believe from the evidence that in the month of or at any time since the maturity of the notes sued on in this case, the defendant and the plaintiff agreed upon a settlement, by which (1021) 1022 Fobms of Lststbtjctions. [§473 the defendant was to assign and transfer to the plaintiff a certain claim of inheritance belonging to the wife of the defendant, and if the jury further believe from the evidence that this basis of settlement was carried out by the parties, that is to say, that the defendant and his wife • executed an assignment and transfer of said claim of inheritance to plaintiff, and that the said claim of inheritance was delivered to and accepted by the plaintiff in full satisfaction of the claim of plaintiff against the defendant, then the jury will find for the defendant) - 1 § 474. Agreement of parties — Necessity in general. The court instructs the jury that the transaction that took place in regard to .this stock, if it took place, as the defendant claims and has testified in regard to, if you are satisfied of that by a preponderance of the evidence, that would be a defense. But the mere fact that the defendant A did work in connection with buying up this stock, bringing it in so it could be divided, I say that mere fact alone would not and could not be considered by you as wiping out this indebtedness between him and B, the plaintiff ; the mere fact' that he did work that was valuable and that enabled the plaintiff to obtain this stock; that mere fact alone of his getting something valuable could not be considered as an offset or cancellation of this indebtedness without this agreement that the defendant claims B made in regard to it. And the mere fact that B received dollars' worth of stock, or any amount of stock, by this agreement of C, could not be considered as an offset to this claim, unless, as I have said, he agreed to receive it in the way that A has stated. In other words, this money as it appears by this agreement was to be furnished by C and C was distributing this stock. If it was a present from C, it was a present from C to each of these men who were running the business and trying to put it upon its feet. He could have kept all this, I suppose ; he could have bought up these notes and could have kept it all, but he made the agreement to divide up with the other two in the company, so that that was a gratuity, 1 — American v. Rimpert, 75 HI. 228. § 478] Accobd and Satisfaction. 1023 so to speak, on the part of C. But if, in connection with that, A, by reason of B's not going out and helping him, got him to say that he would release him from the indebtedness if he brought that about and took that stock, then I say, if that is made out by a preponderance of the evidence, that would be a defense, but the mere fact alone that he got something valuable for nothing from C would not of itself cancel the indebtedness. 2 § 475. Same — Condition required to be attached to offer. The court instructs the jury that to constitute an accord and satisfaction of a claim unliquidated and in dispute it is necessary that the money should be offered in satisfaction of the claim and the offer accompanied with such acts and declarations as amount to a condition that if the money is accepted it is to be in satisfac- tion, and such that the party to whom it is offered is bound to understand therefrom that if he takes it, he takes it subject to such condition. 3 § 476. Acceptance of sum less than amount claimed. § 477. — Indiana. The court instructs the jury that a person cannot pay and satisfy a debt by the payment of a sum less than the debt; but if you believe from the evidence that the plaintiff, in order to avoid a suit, of the result of which he was doubtful, .agreed to receive any sum in full satisfaction of the amount he claimed to be due on said account, and upon such agreement the defendant paid the sum agreed upon, then such agreement and payment would completely discharge the defendant from all liability. 4 § 478. — Nebraska. The court instructs the jury that if you find from the evidence that there was a dispute in good faith between the board of county commissioners of defendant county and the plaintiffs as 2 — Weaver v. Murray, 163 Mich. Frank, 87 III. App. 586; Lang, 660. In disposing of this charge Evans & Co. v. J. H. Lane & Co., the court says it sees nothing there- 83 111. App. 543. in justifying a reversal. 4 — Ogborn v. Hoffman, 52 Ind. 3 — Kingsville Preserving Co. v. 439. 1024 Fokms of Insteuctions. [§ 478 to the amount justly due them under said contract, and that said dispute was settled by such county board agreeing to allow and pay, and the said plaintiffs to accept and receive in full settlement and satisfaction of said claim, and that in pursuance of said claim, and that in pursuance of such settlement and agree- ment, such sum of money was allowed by such board, and paid to, and received by said plaintiffs, then said plaintiffs cannot recover in this action, and your verdict should be for defendant. And you are further instructed that if you find from the evidence that there was a disagreement in good faith between the plaintiffs and said board of county commissioners with respect of the amount due and owing said plaintiffs under said contract, and that said board proposed to allow and pay to them the sum of in full satisfaction and settlement of said claim, that then it was optional with said plaintiffs to accept said sum or to refuse the same. But, if you further find that said plaintiffs exercised such option by accepting such allowance and receiving such sum, then they would be bound by the condition that such allowance and payment was in full satisfaction and settlement of said claim, to the same extent that they would have been bound had they expressly agreed to such condition; and this would be true even as against any secret or expressed intentions to the contrary, or any protests then or subsequently made. 5 § 479. Acceptance of check or notes. §480. —Illinois. The court instructs the jury that if they believe, from the evidence, that prior to the bringing of this suit by the plaintiffs against the defendants there was an honest dispute between the plaintiffs and the defendants as to the amount due from the defendants to the plaintiffs and whether the same was due, and on or about the day of , 19 — , in order to adjust and settle the controversy and the account, the defendants delivered to the plaintiffs a check for and three notes, one for , payable — months after date, one for , payable — 5 — Green v. Lancaster County, 61 Neb. 473. § 481] Accord and Satisfaction. 1025 months after date, and one for , payable — months after date, said check and notes aggregating the sum of , and that said check and notes were delivered to the plaintiffs with the statement and understanding that they were given and should be received in full settlement and payment of said claim of the plaintiffs against the defendants, and the plaintiffs received said check and collected and kept the amount thereof, but refused to accept the notes and returned the same to the defendants, and that the defendants demanded back said [amount of check] unless the plaintiffs should receive the check and notes in full settlement of the account, and the defendants now have said notes in their possession and have tendered the same to the plaintiffs on the trial of this case, then the court instructs you, as a matter of law, that the plaintiffs cannot recover in this action. 6 The court instructs the jury that if the check for and three notes introduced in evidence were sent to the plaintiffs by the defendants at the same time and as a part of one transaction, as a full settlement of an honestly disputed claim between the plaintiffs and the defendants, then the plaintiffs, as a matter of law, were not entitled to receive and appropriate the check and collect the amount thereof and return the notes; that a tender of such a kind must be accepted as a whole, or not at all ; and if the return of the notes was not acquiesced in by the defendants, but they have been tendered back by the defendants to the plaintiffs and are now ready to be delivered by the defendants to the plaintiffs, then the plaintiffs cannot recover in this action. 7 §481. —New York. The court instructs the jury that the acceptance of a check for less than the sum claimed may amount to an accord and satisfac^. tion, and that if you believe from the evidence (here state facts surrounding acceptance of check, as where check was sent and the creditors collected the check but wrote that they had agreed to accept it on account, to which defendant replied that if they 6— Lapp v. Smith, 183 HI. 179, 7— Lapp v. Smith, 183 111. 179, rev'g 83 111. App. 203. rev'g 83 111. App. 203. Blashfleld Vol. 1—65 1026 Fobms of Instructions. [ § 481 retained the amount accepted they would be expected to do so in full payment) , then your verdict will be for defendant. 8 The court instructs the jury that if you find from the evidence that the debtor gave his note indorsed by a third person as further security for a part of the debt and if you further find that the note was accepted by the creditor in full satisfaction of all demands, your verdict will be for the defendant. 9 § 482. Payment of interest admitted, and surrender of notes and mortgages. The court instructs the jury that where there is a bona fide dispute between the maker and payee of notes as to the date from which interest is payable under the terms of the notes which are ambiguous ; and the maker pays the amount he admits to be due on the express condition that the notes and mortgages securing the same shall be canceled and surrendered, and the payee accordingly receives the money and cancels and surrenders the mortgages, there is an accord and satisfaction. 10 § 483. Compliance with condition attached. The court instructs the jury that a payment under an agree- ment to accept less than the whole debt if paid by a certain day, is not a discharge unless the condition is strictly complied with. 11 8 — Bernard v. Henry Werner Co., 10 — Storch v. Dewey, 57 Kan. 370, 19 Misc. (N. Y.) 173. 46 Pae. 698. 9 — Boyd v. Hitchcock, 20 Johns. 11 — Inman v. Griswold, 1 Cow. (N. Y.) 76, 11 Am. Dec. 247. (N. Y.) 199. CHAPTER XXXVIII. ACCOUNT, ACTION ON. § 484. Open accounts in general — Recovery on items admitted. § 485. Book accounts — What constitutes open book account. § 486. Same — Burden of proof. Cross-Reference. Application of payments in case of running account, see Payment. § 484. Open accounts in general — Recovery on items admitted. The court instructs the jury that the plaintiff is entitled to recover the full amount charged in the bill of particulars for all items which have been admitted by defendant to be correct. 1 § 485. Book accounts — What constitutes open book account. The court instructs the jury that if you shall find that the various deliveries of coal to the steamer , as charged upon the books of A, were entered upon the books as parts and items of running and continuous dealings between A and the defendant, and that the account was kept unclosed prior to the date of the last entry on , 19 — , with the anticipation of further transactions on the part of A and the defendant, then I instruct you that the book account which contains these charges is an open book account. 2 The court instructs the jury that the mere entry of items in books does not constitute an open book account, but there must be either an express agreement between the parties to maintain an open book account or some acts from which such an agreement may be reasonably inferred. 3 1 — Mitchell v. Joyce, 69 Iowa 121. 3 — Mercantile Trust Co. of San 2 — Mercantile Trust Co. of San Francisco v. Doe, — Cal. App. — , Francisco v. Doe, — Cal. App. — , 146 Pac. 692. 146 Pac. 692. (1027) 1028 Forms of Ietstktjctions. [§ 486 § 486. Same — Burden of proof. The court instructs the jury, at the request of the defendant that the burden of proof devolves upon the plaintiff to make out its case on the account sued on by a preponderance on evidence, and as to those items, if any, upon which there has been a failure, if any, to make proof, you will disallow them to plaintiff, and as to such items, if any, you will find in favor of defendant. 4 4 — Keating Implement & Machine Co. v. Erie City Iron Works (Tex. Civ. App.) 63 S. W. 546. CHAPTER XXXIX. ACCOUNT STATED. 487. Nature and requisites — Form of words. 488. Same — Agreement of parties. 489. Same — Failure to object to account rendered. 490. In general. 491. — Alabama. 492. — California. 493. — Illinois. 494. — Iowa. 495. — West Virginia. 496. Conclusiveness. 497. — Alabama. 498. — Illinois. 499. Issues and proof — Agency, or ratification of act of third party. 500. Evidence — Burden of proof. 501. — Alabama. 502. — Illinois. 503. — West Virginia. ■ § 487. Nature and requisites — Form of words. The court instructs the jury that no particular form of words is necessary to constitute a settlement, nor is it necessary to prove a promise to pay the balance found to be due, provided a balance be found in the party's favor. 1 § 488. Same — Agreement of parties. The court instructs the jury that it is essential to an account stated that there be an examination of the claims by each party, and an agreement, express or implied, as to the correctness of the allowance of the amount of their respective claims and of the balance struck on the adjustment of the account. 2 The court instructs the jury that to make an account stated 1— Brewer v. Wright, 25 Neb. 805. Wkly. Dig. (N. Y.) 124; Allen v. 2 — Stenton v. Jerome, 54 N. Y. Woonsocket Co., 11 E. I. 288; Bus- 480; Smith v. Harris, 26 Wkly. Dig. sey v. Gant, 29 Tenn. (10 Humph.) (N. Y.) 323; Murphy v. Boss, 26 238. (1029) 1030 Fobms of Instructions. [§ 488 there must be a mutual agreement between the parties as to the allowance or disallowance of their respective claims, and to estab- lish such an account so as to preclude a party from impeaching save from fraud or mistake, there must be proof of assent to the account as rendered, either express or implied from failure to object within a' reasonable time after presentation. 3 § 489. Same — Failure to object to account rendered. § 490. — In general. The court instructs, the jury that where an account rendered is not objected to within a reasonable time, the failure to object will be regarded as an admission of its correctness by the party to be charged, and what is a retention for a reasonable time is to be determined by all the circumstances of the case. 4 §491. — Alabama. The court instructs the jury that plaintiff's failure to object to any charges made against him by the Company can only be considered as a circumstance against him, and not as con- clusive proof that he admitted them to be correct, or that they were correct. 5 § 492. — California. The court instructs the ju r y that if they should find from the evidence that a statement of account was rendered to defendant on , 19 — , and that the items thereof were explained to her, and that more than months elapsed after said date without any objection being made by the defendant, the account became an account stated, the items of which were no longer open to inquiry, in the absence of allegation and proof of fraud or mistake. 6 § 493. — Illinois. The court instructs the jury that if you believe, from the evidence in the case, that the plaintiffs, on or about the or 3 — Stenton v. Jerome, 54 N. Y. 5 — Hodges v. Kyle, 9 Ala. App. 480. 449. 4 — White v. Hampton, 10 Iowa 6 — Cusick v. Boyno, 1 Cal. App. 238; Darby v. Lastrapes, 28 Lans. 643, 82 Pae. 985. (N. Y.) 605. .§ 494] Account Stated. 1031 day of , 19 — , sent to the defendants an account, showing the purchase of the high wines by the plaintiffs for the defendants; the amount paid for the same; the interest on the amount so paid; the credits to the defendants for the paid by them; the sum for which the high wines were sold, and the interest on these amount's, showing a balance in favor of the plaintiffs of ; and the defendants held said account, and retained possession of the same from the date of such delivery up to the time when this suit was commenced, without making objections to the correctness of such account, this is a circum- stance to be taken into account by the jury in determining whether or not the defendants have admitted the correctness of said account. 7 The court instructs the jury that if you believe from the evidence that some time about the day of , 19 — , a statement of account was made by the plaintiff or its agent, and submitted to the defendant or its agent, and the latter acquiesced in its correctness, the jury are instructed that the law regards this as a stated account, by which both parties will be bound unless it can be shown that some error or mistake has been made or fraud practiced, and the burden of proving mistake or fraud is on the party alleging it. 8 § 494. — Iowa. The court instructs the jury that what will amount to a stated account from the presumed acquiescence of the plaintiff, arising from lapse of time and his failure to object to the same within a reasonable time, depends upon the circumstances and nature of the transaction and habits of business, and it is for you to determine, from all the circumstances of the case, whether plaintiff acquiesced in the statement rendered by the defendant by lapse of time. 9 7 — Miller v. Bruns, 41 111. 293. 9 — Millard v. Bennett, 161 Iowa 8 — Concord Apartment House Co. 242. v. Alaska . Eefrigerator Co., 78 111. App. 682. 1032 Forms of Instkuctio:ns. [§495, § 495. — West Virginia. The jury are further instructed that he who has been silent as to his alleged rights when he ought to have spoken is not per- mitted to speak when he ought to be silent; and if you believe from the evidence in this case that the plaintiff received, from time to time, from the defendant statements of his account with the defendant and was thereby afforded the opportunity to see the items in his bill of particulars mentioned .charged against him, and remained silent and did not object to the charge of such items against him within a reasonable time after each of such items was so rendered, then the defendant had the right to infer acquiescence of the plaintiff in the correctness of such charges and the plaintiff is now estopped to deny the correctness of all such items to which he did not object in proper time ; and, as to all such items of the plaintiff's account, you must find for the defendant. 10 §496. Conclusiveness. §497. —Alabama. The court instructs the jury that if you believe there was a stated account between the plaintiff and defendant in this case, that this fact would not preclude the defendant from showing that the said account was either incorrect or void for want of consideration. 11 §498. —Illinois. The court instructs the jury that a settlement between two parties is a mutual accounting between them, done with the full assent and knowledge of both parties, by which the parties shall arrive at some definite result as to the amount due from one to the other, and in which result both parties agree as to such amount due. And if the jury believe, from the evidence, that the pre- tended settlement, claimed by the plaintiff to have taken place in , 19 — , was not an accounting in which both parties agreed, or if there was committed any error in such settlement, 10— Shrewsbury v. Tufts, 41 W. 11— Ivy Coal & Coke Co. v. Long, Va. 212. 139 Ala. 535. §499] Account Stated. 1033 accidental or otherwise, on the part of the plaintiff, then such accounting and pretended settlement is not binding upon the defendant. 12 The court instructs the jury that if they find, from the evidence in the case, that the defendant admitted the account sued on in this case to be correct and unpaid, and promised to pay the same, that such admissions are sufficient evidence to entitle the plaintiffs to recover the amount of said account, unless they further find from the evidence that defendant when he made the admission, was as a fact mistaken in the facts in regard to said account. 13 The court instructs the jury, as a matter of law, that if you believe from a consideration of all the evidence that the defendant arrived at a settlement with the plaintiff, as to the balance due him, then he is bound by that settlement and is liable to him for the balance, if any, so found, unless it shall appear that the settle- ment was made through fraud of the plaintiff, or the mistake of both parties. 14 The court instructs the jury that if they believe from the" evidence that from time to time the officers or agents of the plaintiff and defendant in this suit met and looked over their accounts together, and settled all matters between them and struck a balance, and agreed upon that as the amount due from one to the other, then, in the absence of mistake or fraud, neither party will be allowed to go behind that settlement for the purpose of increasing or diminishing the amount so agreed upon. 15 § 499. Issues and proof — Agency, or ratification of act of third party. The court instructs the jury that a recovery cannot be had on the basis of an account stated made with defendant 's agent, with- out proof that he was an authorized agent of the defendant at the time, or there was a subsequent ratification of his act. 16 12— Eddie v. Eddie, 61 111. 134. 15— Gottfried Brewing Co. v. 13 — Warren v. Dickaon, 27 111. Szarkowski, 79 111. App. 583. 115. 16— Mink v. Morrison, 42 Mich. 14— Neagle v. Herbert, 73 111. 567; Harvey v. West Side El. R. Co., App. 17. 13 Hun (N. Y.) 392. 1034 Foems of Ixstbuctions. [§ 500 § 500. Evidence — Burden of proof. § 501. — Alabama. • The court instructs the jury that the burden of proof is on the defendant to reasonably satisfy you from the evidence of the correctness of any item charged to the plaintiff by the • Company, which was not authorized by the mortgage in evidence. 17 §502. —Illinois. The court instructs the jury that a strong presumption arises that a settlement of account between parties embraces all the items each has against. the other which are due, and to overcome this presumption it devolves on the party asserting the contrary to prove that the item was not due or that it was by consent of the parties omitted from the settlement or omitted by accident or unintentionally by the party claiming. 18 § 503. — West Virginia. The jury are instructed that the burden of proof is on the plaintiff to make out his case by a preponderance of the evidence. In this case the plaintiff's claim, according to his bill of particu- lars, is for commissions alleged to have been retained improperly, and not paid to him, as shown by statements of account rendered and filed with said bill of particulars ; and the jury are instructed that the burden is on the plaintiff to show by a preponderance of the evidence that the items referred to in such statement of accounts, and charged in his bill of particulars, are not lawful charges against the plaintiff; otherwise he is not entitled to recover in this action and you must find for the defendant. 19 » 17 — Hodges v. Kyle, 9 Ala. App.. 19— Shrewsbury v. Tufts, 41 W. 449. Va. 212. 18— Straubher v. Mohler, 80 111. 21. CHAPTER XL. ACKNOWLEDGMENT. § 504. Operation and effect — Validation of signature to instrument. §504. Operation and effect — Validation of signature to instru- ment. The court instructs the jury that if they find from the' evidence that the certificate is true, then they will find for the plaintiff,, and it can make no difference whether J. M. and R. M. actually did or did not sign their names to the mortgage with their own hands. 1 The court instructs the jury that under the laws of it is not necessary in order for husband and wife to make a valid mortgage, that they or either of them should actually sign their names with their own hands, but if they appear before a proper officer and acknowledge the execution as the law provides and the officer attaches his certificate as the law provides, then this is sufficient, so far as the signing of the names to a mortgage is concerned. 2 1 — McClendon v. Equitable Mortg. 2 — McClendon v. Equitable'Mortg. Co., 122 Ala. 384. Co., 122 Ala. 384. (1035) CHAPTEE XU. ACT OF GOD. § 505. What constitutes act of God in general. Cross-Beference. See Carriers. § 505. What constitutes act of God in general. The court instructs the jury that by the expression "act of God" is meant some destructive occurrence which could not have been occasioned by the intervention of man, but which proceeds from natural causes alone, such as the violence of the elements or natural accident. It must be such that it was impossible to be guarded against. 1 1— Forward v. Pitard, 1 T. R. 27. (1036) ' CHAPTER XLII. ADJOINING LANDOWNERS. § 506. Excavations — Notice. § 507. Same — Proximate cause of damage. § 508. Same — Actions for damages — Issues and proof. § 509. Same — Same — Measure of damages. § 510. Eavesdrip — In general. § 511. Same — Sufficiency of gutter and down spout. § 512. Same — Actions for damages — Elements of damages. § 513. Palling walls — Actions for damages— Defenses. § 514. Same — Same — Presumptions and burden of proof. Cross-references. See Boundaries; Fences; Use and Occupation; Waters and Water Courses. § 506. Excavations — Notice. ' The court instructs the jury that if they shall find that the work done upon the defendant's premises hy which the house known as is alleged to have been injured, was done by contractor under the written contract offered in evidence and shall further find that a reasonable time before any excava- tion below the foundation of said h6use was made, the plaintiff was notified or had actual knowledge that such excavation was about to be made, then, under the pleadings and the evidence in the cause, their verdict must be for the defendant. 1 The court instructs the jury that if they find from the evidence that a reasonable time before the contractor commenced to dig under the foundation wall of the defendant's house next to the premises at , on the east, but separated from it by an alley about — ft. wide, the defendant notified the plaintiff of his intention to do so ; and shall further find that afterwards the said 1 — Bonaparte v. Wiseman, 89 Md. 12, 44 L. E. A. 482. (1037) 1038 Foems op Insteuctions. [§ 506 contractor did dig under said foundation wall upon the defend- ant's ground, and in so doing exercised reasonable care to prevent the ground under the bed of the said alley from caving in, then the plaintiff is not entitled to recover, though the jury may believe that the east and south walls of the plaintiff's house or either of them settled and cracked by reason of the excavation made by the said contractor. 2 §507. Same — Proximate cause of damage. The court instructs the jury that if they believe from the evidence that the east and south walls of the house at were in a bad condition before the commencement of the digging by the contractor under the foundation wall of the defendant's house, and that the settling and cracking thereof were caused by their own inherent defects and not by the digging by the defend- ant of his cellar in the year , then the plaintiff is not entitled to recover for any injury to her property caused by such settling and cracking. 3 § 508. Same— Actions for damages — Issues and proof. .__ The court instructs the jury that if they shall believe that the house at was in a ruinous and dilapidated condition before the contractor commenced work upon premises of the defendant adjoining it on the east, and shall not find that by reason of such work it became more ruinous and dilapidated to an extent which impaired its rental value, then under the pleadings and all the proof in the cause, the plaintiff cannot recover, and their verdict must be for the defendant. 4 § 509. Same — Same — Measure of damages. The court instructs the jury that there is incident to land in its natural condition, a right to support from the adjoining land; and if land not subject to artificial pressure, sinks or falls a Way in consequence of the removal of such support, the owner is entitled to damages to the extent of the injury sustained. The 2 — Bonaparte v. Wiseman, 89 Md. 4 — Bonaparte v. Wiseman, 89 Md. 12, 44 L. B. A. 482. 12, 44 L. R. A. 482. 3 — Bonaparte v. Wiseman, 89 Md. 12, 44 L. R. A. 482. § 511] Adjoining Landownebs. 1039 measurement of damages in such case is not the cost of restoring the land to its former condition or situation, or of building a wall to support it, but it is the diminution in value of the plaintiff's land by reason of the acts of the party removing the support. 5 § 510. Eavesdrip — In general. The court instructs the jury that the plaintiff complains in his declaration that the defendant is the owner of a livery barn adjoining the premises occupied by plaintiffs, having a large roof surface, from which water falling on said, roof was negligently permitted to flow off and upon the premises of the plaintiffs in great quantities ; and further alleges that on , 19 — , the water thus negligently permitted by defendant to flow from the roof of his barn on the premises occupied by plaintiffs, caused the damage complained of. If you believe from the preponder- ance of the evidence that the plaintiff has proven these allega- tions of the declaration and that plaintiff was thereby injured, your verdict should be for the plaintiff. 6 § 511. Same — Sufficiency of gutter and down spout. The court instructs the jury that before the plaintiffs can recover, they must show that the damage caused to their property, as claimed in the declaration, was caused by reason of the negli- gence and failure of the defendant to provide his barn with such gutter and down spout as would ordinarily and usually carry away all water that might fall upon the roof thereof by all ordinary and expectant rains; and that if the jury believe from the evidence that the defendant did furnish such gutter and down spout, and used reasonable care to keep the same in reasonably good condition, and that the damage to plaintiffs was by reason of extraordinarily heavy floods, and not by reason of any negli- gence on the part of the defendant, then and in that case, they should find him not guilty. 7 5 — Moellering v. Evans, 121 Ind. 7 — Miller Harness Co. v. Wilson, 195. 104 111. App. 556. 6 — Miller Harness Co. v. Wilson, 104 111. App. 556. 1040 Foems of Instructions. [§ 511 The court instructs the jury for defendant that the law does not require the owner of a building to keep and maintain a gutter that will always, under all circumstances, carry off the water. If the jury believe from the evidence that the gutter on 's building was sufficient to carry off the water that would fall on the roof of 's building in the usual and ordinary rain- storms, that would be a compliance with the law. 8 § 512. Same — Actions for damages — Elements of damages. The court instructs the jury that expenditures incurred by the plaintiff in attempting to remedy the alleged cause of the injury may be recovered, and that if the jury believe from the evidence (here state the facts) that the defendant negligently - allowed water to flow from a pipe upon the plaintiff's premises, and that the plaintiff built a wall to prevent such flow of water after the refusal of the defendant to remedy the cause of the injury, plaintiff may recover for the building of such wall. 9 § 513. Palling walls — Actions for damages — Defenses. The court instructs the jury that the fact, if shown by the evidence, that A was erecting a building on his property in viola- tion of a city ordinance, is no defense to this action, and, if true, will not prevent the owner from recovering for his injuries if otherwise entitled thereto. 10 8 — Meister v. Lang, 28 111. App. come within the language and mean- 624. "By ordinary rains are meant ing of the instruction. If plaintiff all usual and always to be expected in error desired the jury to have a rains, in certain seasons in each and legal definition of ordinary and ex- every year; and by extraordinary traordinary rains, it was his privi- rains, such as do not occur, nor are lege to ask for it; and because he did reasonably to be expected, annually. not, we see no reason why the court * * * This instruction is criti- should not use the word ordinary, in eised as being misleading because it the instruction complained of, with- did not define what an ordinary rain out stopping to define its meaning." was; and counsel say that heavy 9 — Comstoek v. New York Cent, rains were those spoken of by the & H. River R. Co., 48 Hun (N. Y.) witnesses as causing the damage. 225. All rains, whether heavy or light, 10 — Hall v. Gage, — Ark. — , 172 that may reasonably be expected to S. W. 833. fall at certain seasons, would clearly ' § 514] Adjoining Landownees. 1041 § 514. Same — Same — Presumptions and burden of proof. The court instructs the jury that it is the duty of an owner of a building to take reasonable care that it shall not fall and injure others; and therefore the mere fact of the fall of a building whereby a person lawfully on adjoining premises is injured, raises a presumption that the owner of the building has been negligent. 11 "The court instructs the jury that the collapse of a building or falling of a wall is prima facie evidence of negligence, and imposes a burden upon the owner to show that the accident happened without his negligence. 12 11— Hall v. Gage, — Ark. — , 172 12— Hall v. Gage, — Ark. — , 172 S. W. 833. S. "W. 833. Blashfield Vol. 1—66 CHAPTER XLIII. ADULTERY. § 515. Nature and elements — In general. § 516. Same — Consent of female to intercourse. § 517. Same — Occasional occupancy of same room. § 518. Complaint by spouse — Subpoena by, and testimony before grand jury. § 519. Issues and proof — Time of commission of crime. § 520. — Oregon. § 521. — Texas. §522. —Utah. § 523. Evidence — Presumptions and burden of proof — Existence of marriage relation between complainant and defendant. § 524. Same — Same — Finding of indictment on complaint of wife. § 525. Same — Same — Sexual intercourse. § 526. Same — Weight and sufficiency — Adulterous and amorous disposition of parties. § 527. Same — Same — Opportunity to commit crime. § 528. Same — Same — Occupancy of sleeping apartment by defendants alone. § 529. Same — Same — Degree of proof required. Cross- References. See Bigamy; Fornication; Incest; Lewdness; Prostitution; alienation of affections, see Husband and Wife; criminal conversation, see Husband and Wife; false accusation, see Libel and Slander; ground for divorce, see Divorce; matters pertaining to law of crime in general, see Criminal Law; provocation for homicide, see Homicide, §§ 3845-3848. § 515. Nature and elements — In general. The court instructs the jury that if you believe from the evidence beyond a reasonable doubt that the defendant A was on or about , 19 — , a married man, whose wife's name was B, which married relation is admitted by defendant, and did then and there and in said county, , have habitual carnal intercourse with the said C, then you will find the defend- ant guilty, and assess his punishment at not less than nor more than . 1 1 — Bussell v. State, 53 Tex. Cr. App. 500. (1042) § 520] Adulteby. 1043 § 516. Same — Consent of female to intercourse. The court instructs the jury that to constitute the crime of adultery, as against the man, the consent of the woman to the carnal intercourse is not indispensable, but the offense may, as against him, exist, though the connection was effected by force and against her will. 2 § 517. Same — Occasional occupancy of same room. The court instructs the jury that if they shall find from the evidence that the defendants were not living together in a state of open and notorious adultery but were simply at the time charged in the information stopping together in the same- room occasionally, and were only guilty of occasional acts of illicit intercourse, then the court should find the defendants not guilty. 3 § 518. Complaint by spouse — Subpoena by, and testimony before grand jury. The court instructs the jury that if the wife of the defendant appeared before .the grand jury in response to a subpoena and testified before them in the case, but not intending to prefer the charge of adultery against the defendant, but gave her testimony supposing she was required to do so, this would not be a com- plaint by her against her husband, within the meaning of the law. 4 § 519. Issues and proof — Time of commission of crime. § 520. — Oregon. The court instructs the jury that though the crime was alleged to have been committed , 19 — , it was not necessary that they should find that it was the exact date ; but if they were satis- fied that it was perpetrated within a month or more from the date stated, and before the information was filed, it would justify them in bringing in a verdict of guilty, if they were satisfied, beyond a reasonable doubt, that at the time the crime was com- mitted the defendant was a married man and the husband of A. 5 2 — State v. Donovan, 61 Iowa 278. 5 — State v. Eggleston, 45 Ore. 346, 3— State v. Crowner, 56 Mo. 147. 77 Pac. 738. 4 — State v. Donovan, 61 Iowa 278. See State v. Loftus, 128 Iowa 529. 1044 Forms of Ietstktjcttons. [§ 521 §521. —Texas. The court instructs the jury that they can not convict the defendant for living in adultery for any period of time after the filing of said complaint. 6 §522. —Utah. The court instructs the jury that the exact time alleged in the information as to the commission of the crime charged need not be proved, for it is sufficiently established under, the law, if you believe beyond a reasonable doubt that the unlawful act charged was committed within years next prior to the filing of the information, which information was so filed on , 19 — . 7 § 523. Evidence — Presumptions and burden of proof — Existence of marriage relation between complainant and defendant. The court instructs the jury that the marriage may be proved in different ways. Evidence of eyewitnesses who saw the mar- riage performed is sufficient (that is, it is sufficient if you believe the evidence to be true) ; and if you are satisfied from the evidence in this case that at the time this act is alleged to have been committed the defendant, A, was married to B [the complainant] , that would be sufficient evidence upon that part of the case. I will further say that if you are satisfied that the marriage was performed, that the defendant and B [the complainant] were married at some time prior to the time this offense is alleged to have been committed, it would not be necessary for the state to go on and show that they continued to be husband and wife, but it would be presumed they have continued to be husband and wife, in the absence of any evidence to the contrary. 8 § 524. Same — Same — Finding of indictment on complaint of wife. The court instructs the jury that the burden is on the state to show that the indictment was found on the complaint of the wife, and failing to do so the jury should acquit. 9 6 — Proctor v. State, 37 Tex. Cr. 8— State v. Eggleston, 45 Ore. 346, App. 366. 77 Pac. 738. 7 — State v. Greene, 38 Utah 389, 9 — State v. Donovan, 61 Iowa 278. 115 Pac. 181. § 528] Adulteby. 1045 § 525. Same — Same — Sexual intercourse. . The court instructs the jury that sexual intercourse must be proven. 10 §526. Same— Weight and sufficiency— Adulterous and amorous disposition of parties. The court instructs the jury that you can take into considera- tion, however, evidence tending to show an adulterous or amorous disposition on the part of the accused, and also on the part of the person with whom it is alleged that he committed this crime — any adulterous or amorous disposition, or evidence tending to show an inclination on the part of these parties to commit adultery. You can take into consideration any evidence tending to show such a disposition or inclination, either before or after the time when this crime is alleged to have been committed ; and you may take into consideration any evidence tending to show that this act was committed at other times and places, although, it may show distinct and separate crimes, because such evidence would tend to show an adulterous disposition or inclination on the part of the parties. 11 § 527. Same — Same — Opportunity to commit crime. The court instructs the jury that you may also take into con- sideration any evidence tending to show an opportunity upon the part of these parties to commit this crime. Evidence of an adul- terous disposition or inclination, together with evidence of an opportunity to commit the crime, would be sufficient to justify you in bringing in a verdict of guilty against this defendant, if this evidence satisfies you beyond a reasonable doubt that the crime was committed. 12 § 528. Same— Same— Occupancy of sleeping apartment by defend- ants alone. The court instructs the jury that if they believe from the evi- dence, beyond a reasonable doubt, that the defendants, within 10 — People v. Payment, 109 Mich. 12 — State v. Eggleston, 45 Ore. 553! 346, 77 Pae. 738. 11 — State v. Eggleston, 45 Ore. 346, 77 Pac. 738. 1046 Fokms of Instructions. [§ 528 — years next previous to the date of the returning of the in- dictment into court [giving the proper date of such return], occu- pied the sleeping apartment alone as a sleeping room, that circumstance may he considered by you in arriving at your ver- dict. 13 § 529. Same — Same — Degree of proof required. The court instructs the jury that they are to determine from all the circumstances, as brought out by the evidence, whether or not the defendants lived together in a state of adultery, and in order to find the defendants guilty they must find from the evidence that the defendants were living together in an open and notorious state of adultery and that they were cohabiting together ; and if the evidence does not establish the living together and cohabita- tion together of the defendants in the minds of the jurors beyond a reasonable doubt, then • they must find the defendants not guilty. 14 13 — United States v. Griego, 12 14 — Tomlinson v. People, 102 111. N. M. 84, 75 Pac. 30. App. 542. CHAPTER XLIV. * ADVERSE POSSESSION. I. Nature and Requisites. A. ACQUISITION OP RIGHTS BY PRESCRIPTION IN GENERAL. § 530. Definition of adverse possession. 5 531. — Texas. §532. — Virginia. § 533. Persons against whom prescription will run. § 534. Elements of adverse possession in general. §535. — Alabama. § 536. — Connecticut. 5 537. — Indiana. 5 538. — Iowa. ) 539. — Kentucky. ) 540. — Michigan. ! 541. — Missouri. i 542. — New York. i 543. — South Carolina. i 544. — Texas. i 545. — Wisconsin. i 546. — United States. i 547. Color of title — Distinguished from the claim of title. i 548. Same — Necessity. i 549. — Alabama. i 550. — Michigan. i 551. Same — Antedated deed. i 552. Same — Void deed. i 553. — Alabama. i 554. — Connecticut. i 555. — South Carolina. B. ACTUAL POSSESSION. i 556. In general. i 557. Entry — Necessity — Intent. i 558. Visible and notorious character of possession in general. i 559. — Alabama. i 560. — Michigan. i 561. — North Carolina. (1047) 1048 Foems' of Instktjctions. § 562. — Texas. § 563. Inclosure, improvements and cultivation. § 564. — Alabama. § 565. — Connecticut. § 566. — Georgia. § 567. — Kentucky. § 568. — Maine. §569. • — Michigan. § 570. — Missouri. § 571. — Nebraska. § 572. — Texas. § 573. — Wisconsin. §574. —United States. § 575. Cutting grass or fire wood. § 576. — Connecticut. § 577. — Maine. § 578. Piling wood or lumber on land. § 579. Wild land. C. CONTINUITY OP POSSESSION. § 580. Necessity. § 581. Occasional absence of occupant or tenant. § 582. Interruption by claim of tenant or tenant 's wife. § 583. Tacking possessions — In general. § 584. — Missouri. § 585. — South Carolina. § 586. — United States. § 587. Same— rVendor and purchaser. §588. — Alabama. § 589. — Illinois. § 590. Same — Landlord and tenant. § 591. — Alabama. .§ 592. — Georgia. §593. —United States. D. HOSTILE CHARACTER OP POSSESSION. § 594. Claim of title — In general. § 595. — Alabama. § 596. — Iowa. § 597. — Nebraska. § 598. — West Virginia. § 599. Same — Notice to, or knowledge of owner. § 600. — Alabama. § 601. — Michigan. § 602. — North Carolina. § 603. — Virginia. § 531] Advekse Possession. 1049 E. PAYMENT OF TAXES. § 604. In general. § 605. — Illinois. § 606. — Minnesota. II. Operation and Effect. A. EXTENT OF POSSESSION. § 607. Constructive possession — Definition. § 608. Same— Sufficiency. § 609. — Alabama. § 610. — Maine. § 611. — Texas. § 612. — West Virginia. B. TITLE ACQUIRED. § 613. Effect "of survey after acquisition of title. III. Pleading, Evidence and Trial. § 614. Pleading — Issues and proof. , §■615. Evidence — Presumptions and burden of proof — Ownership of land. § 616. Same — Same — Existence of adverse possession. § 6^7. Same — Same — Continuance of adverse possession. § 618. Same — Weight and sufficiency. § 619. Questions for jury. Cross-Eeferences. See Boundaries ; Ejectment ; by life tenant, see Life Estates ; establish- ment of city street by prescription, see Municipal Corporations; establishment of highway by prescription, see Highways. I. Natuke and Requisites. A. ACQUISITION OP RIGHTS BY PRESCRIPTION IN GENERAL. § 530. Definition of adverse possession. § 531. — Texas. The court instructs the jury that adverse possession is an ac- tual, continuous, notorious, visible, and hostile appropriation of the land, commenced and continued under a claim of right incon- sistent with and hostile to the claim of another. 1 1 — Texas & N. O. E. Co. v. Broom, 53 Tex. Civ. App. 78. 1050 Forms of Instructions. [§ 532 §532. —Virginia. The court instructs the jury that adverse possession is the actual occupied possession under color and claim of title, and it is wholly immaterial whether this claim of title be under a good or bad, a legal or an equitable title. 2 § 533. Persons against whom prescription will run. The court instructs the jury that if you believe from the evi- dence, that the defendant, and those through whom he obtained possession of the property sued for, had had a continuous .pos- session thereof for twenty years next before the commencement of this suit, claiming the same as their own, — then they should find for the defendant as against each of the plaintiffs, who has not proved herself or himself either under twenty-one years of age, or a married woman, at the commencement of such pos- session; and the burden of proof is upon each of the plaintiffs claiming to have been under such age, or a married woman at the commencement of such possession, to prove it affirmatively; and until it be proved to the satisfaction of the jury, the contrary thereof should be presumed by the jury. 3 § 534. Elements of adverse possession in general. § 535. — Alabama. The court instructs the jury that if they find from the evi- dence that A has held exclusive, open and adverse possession of the lands in controversy, claiming them as her own, since 19 — , then she acquired a complete title, and the plaintiff can not re- cover in this cause.* § 536. — Connecticut. The court instructs the jury that the question in this part of the case is whether the defendants, and those under whom they claim, have for a period of had actual, open and ex- clusive adverse occupancy and possession of the land claimed 2— Interstate Coal & Iron Co. v. 4— Stiff v. Cobb, 126 Ala. 381, 85 Clintwood Coal & Timber Co., 105 Am. St. Rep. 38. Va. 574. 3 — Dessaunier v. Murphy, 33 Mo. 184. § 539] Adverse Possession. 1051 to be owned by the plaintiff, such adverse possession being known and acquiesced in by the real owner, or so far notorious as to be presumptively within his knowledge. 5 §537. —Indiana. The court instructs the jury that if they find that a public highway was located on and across the lands of either of the parties, and had been so located and used for more than years, and that if the plaintiff and his predecessors in interest had occupied and used the lands immediately south of and up to the south line of such highway for the full period of years prior to the alleged trespass, and that if such occupancy had been open, notorious, visible, adverse, and under claim of right for such length of time, then the plaintiff's title to the lands would extend to the center of the highway. 8 § 538. — Iowa. The court instructs the jury that to constitute a bar to plain- tiff's right to recover in this action defendants herein must show an actual occupancy of the premises in suit, clear, definite, no- torious and hostile, and such occupancy must be continuous, ad- verse and exclusive during the whole period prescribed by the statute. 7 § 539. — Kentucky. The court instructs the jury that if they believe from the evi- dence that N conveyed the entire boundary of land described in plaintiff's petition to W on the — of , , and that said W on the — of , , sold and conveyed the same property to the plaintiff H, and further believe from the testimony that in pursuance of such conveyance and under color thereof, they, the said W and the plaintiffs entered into the actual possession of the lands so conveyed, claiming title thereto to the full extent of the boundary and title so conveyed, and that such possession of said land continued for (the period prescribed by statute) previous to the defendant's entry sued for, and during such > 5 — Merwin v. Morris, 71 Conn. 7 — Davenport v. Sebring, 52 Iowa 555. 364. 6 — Fatic v. Myer, 163 Ind. 401. 1052 Fokms op Insteuctions. [§ 539 period, their possession was actual, visible and notorious, then such possession is adverse and the jury should find for the plain- tiffs and determine their damages as indicated in previous in- structions. 8 , The court instructs the jury that unless they should believe from the evidence that the plaintiff, , had the actual, adverse possession of the tract of land in controversy, continu- ously and uninterruptedly for years and notoriously as her own, adversely to all others, the jury should find for defendant. 9 The court instructs the jury that if they believe from the evidence that the plaintiff, A, made an absolute and uncondi- tional verbal gift of his entire title to the land described in the petition to his son B, and in pursuance of such gift, he, the said B, entered into the possession thereof, claiming title thereto ac- cording to such gift, and that such possession of said land con- tinued for a period of years previous to B's death, and during such period his said possession was actual, visible, and notorious, then such possession is adverse, and the jury should find for the defendant. 10 § 540. — Michigan. The court instructs the jury that when a party claims to have acquired title to the lands of another by having held possession a length of time sufficient to bar the owner from retaking pos- session, he must, to succeed, show that his possession is of that exclusive, permanent, open, hostile, and adverse character as to put the owner in the position of failing to assert his rights, know- ing, or having reason to know, they were encroached upon, for the full period of ■ — . 11 §541. — Missouri. • The court instructs the jury that if they believe from the evidence that S cleared and cultivated the land east of the old levee, beginning at an old stone in the southeast corner of the 8— Maysville & B. S. K. Co. v. 435. See Owsley v. Owsley, 117 Ky. Holton, 100 Ky. 665. 47. 9 — Louisville & N. E. Co, v. Rayl, 11 — Hockmoth v. Des Grand 32 Ky. L. Rep. 870. Champa, 71 Mich. 520. 10 — Thomson v. Thomson, 93 Ky. § 542] Advekse Possession. 1053 lot No. 7, of the D tract, and running eastwardly at right angles to said old levee toward the Mississippi river, and that he and those under whom he claims title have been in the open, notorious and adverse possession thereof, claiming title thereto for more than (time. prescribed by statute) prior to the institution of this suit, plaintiff is not entitled to r recover any part of the land so occupied, nor any part o$ the accretion thereto. 12 The court instructs the jury that, in order to divest the title to the land described in plaintiff's declaration out of the plain- tiff and vest it in the defendant, by reason of his adverse" posses- sion, that possession must be actual, visible, notorious and hostile, continuous and uninterrupted, under a claim of title, for a period of (time prescribed by statute) next preceding the commencement of this suit. 13 The court instructs the jury that if the title to the land in con- troversy emanated from the government more than years, and that the defendant and those under whom he claims have been in the lawful possession for one year before the institution of this suit and that the plaintiff and those under whom he claims have not paid any taxes on the said land for ■ years prior to , 19 — , then- the plaintiff cannot recover. 14 § 542. — New York. The court instructs the jury that the occupant who claims adverse possession must claim during the (time prescribed by statute) adverse to the true owner. This possession must be a possession undisturbed and open and under the open claim of ownership and must be adverse to the owner of record. This is a question of fact for you to decide on all the evidence in this case — whether the defendant and the parties who owned before him and occupied the premises have peaceably, openly and un- der claim of ownership to the exclusion of the plaintiff, occupied the premises in question. 15 12— Benne v. Miller, 149 Mo. 228. St. 827. The use of the word 13 — Dalby v. Snuffer, 57 Mo. 294. "peaceably" was objected to, but 14 — Campbell v. Greer, 209 Mo. held proper as limited and under- 199. stood by the use of the word "un- 15 — McAvoy v. Cassidy, 60 N. Y. disturbed." 1054 Fokms of Instructions. [§ 543 §543. —South Carolina. The court instructs the jury that if the said defendant took possession of the land in dispute here sued for under claim of title and held and claimed it as his own adversely and continued to so hold ft adversely against all the world, until the expiration of from the time of his first taking possession, then this action is barred by the statute of limitations. 16 §544. —Texas. The court instructs the jury that in -connection with defend- ant's plea of limitation, you are charged that if you believe from the evidence that, at any time anterior to bringing this suit, A was in peaceable and adverse possession of the land in contro- versy, cultivating, using or enjoying the same, for a period of consecutive years, then you are instructed that he would have title by limitation to the same, and, if you so find you will let your verdict be for the defendant A. ' ' Peaceable possession ' ' as above used, means continuous possession not interrupted by adverse suit to recover the land. The term ' ' adverse possession, ' ' as used above, means the actual and visible appropriation of the land, commenced and continued under a claim of right incon- sistent with and hostile to the claim of another. 17 § 545. — Wisconsin. The court instructs the jury that if you find from the evidence that the defendant entered into the occupation and possession of the premises in question claiming title thereto exclusive of and hostile to any other right, and that such claim of title was made in good faith, the defendant believing that he had a good title to such land as the owner thereof, and further find that such occupation and possession was actual and continued, uninter- rupted and notorious and hostile to any other right or title to said land, for a period of (the period prescribed by statute) prior to the commencement of this action, and that during all that time 16— Sutton v. Clark, 59 S. C. 440, 17— Hermann v. Schroeder, — 82 Am. St. Rep. 848. The court held Tex. Civ. App. — 175 S. W. 788. in this case that adverse possession for the statutory period confers a positive affirmative title. § 547] Advebse Possession. 1055 the defendant so claimed title to said land, that would consti- tute adverse possession, and would bar plaintiff's right to recover in this action and your verdict in such case would be for the de- fendant. 18 § 546. — United States. The court instructs the jury if they find from the evidence that D, the ancestor of the defendants, bought at a tax sale held by the , the property in controversy in this case and paid the price bid by him at such sale and received from the a deed to said property, which was by him duly filed for record and recorded in the more than (time prescribed by statute) prior to. the commencement of this suit ; that thereupon the said property was assessed to the said D on the tax books of the city of W and the taxes thereon from that time until the beginning of this suit were paid by the said D or his successors in title, the defendants in this case ; that at a period of time more than years before the commencement of this suit the said property was rented on behalf of the defendants to a person who took the same and held possession thereof as tenant of the defendants for the purposes of a stone yard, paying rent therefor from the date of making such arrangement with the defendants, and that, although the said property was not in- closed by a fence, yet the person so renting the same, either upon the whole or a part thereof, during his occupancy deposited stone used by him in the business, and that such use and possession of the said property was continued by the occupant thereof actually, exclusively, continuously, openly, notoriously, adversely and un- interruptedly for a period of (time prescribed by statute) 'next before the commencement of this suit, then the jury is instructed that the defendants are entitled to recover. 19 § 547. Color of title — Distinguished from claim of title. The court instructs the jury that color of title and claim of title are not in their strict sense synonomous terms. To consti- 18 — Bartlett v. Secor, 56 Wis. 520. 19 — Holtzman v. Douglasj.ja68 U. S. 278, 42 L. Ed. 466. 1056 Foems op Instkuctions. [§ 547 tute color of title a paper title, — that is, a deed or other instru- ment purporting to convey title, — is necessary, but a claim of title may exist wholly in parol, and may be manifested by acts as well as by words, and if you find from the evidence that the de- fendant S built a house or houses and barn and other outbuild- ings, dug a well or wells, planted an orchard and otherwise improved and cultivated the premises in controversy, this is com- petent evidence tending to show claim of title on part of the de- fendant upon which an adverse possession may be predicated and which if continued for (the period prescribed by statute) or more would bar the plaintiffs from maintaining this action. 20 §548. Same — Necessity. §549. — Alabama. The court instructs the jury that if they find from the evidence that A bought the lands in the fall of 19 — from B and went into actual adverse possession of the land by himself, and by tenant, claiming them as his own from his said purchaser, then his adverse possession would run from that time, although he did not receive his deed from B till 19— . 21 §550. —Michigan. The court instructs the jury that plaintiff's adverse possession would become perfect with the lapse of (time prescribed by stat- ute) even if plaintiff originally had no shadow of title, provided such adverse possession was so open that any other person could bring suit to eject the plaintiff. 22 § 551. Same — Antedated deed. The court instructs the jury that if A and B made the B deed in 19 — and dated it back in 19 — , it was a gross fraud, if A in- tended to use such deed as a color of title since 19 — against the defendant. 23 20— Bartlett v. Secor, 56 Wis. 520. 23— Edmondson v. Anniston City 21— Barron v. Barron, 122 Ala. Land Co., 128 Ala. 589. 194. 22 — Beecher v. Ferris, 112 Mich. ^ 584. § 555] Adverse Possession. 1057 § 552. Same — Void deed. § 553. — Alabama. The court instructs the jury that if at the time the deed from A to B was executed, the defendant or those under whom it claimed, was in adverse possession of said land, then said deed from A was void as evidence of title. 24 § 554. — Connecticut. I am asked by the defendant's counsel to charge you, in con- formity with this* statute, that, if you find that the defendants had entered upon and held possession of the premises in question at the time A made his conveyance to the plaintiff, then the deed must be held to be void, and the plaintiff cannot by reason of it establish a title. That is so, gentlemen, with the qualification that by the language of the statute, as you will recollect, the dispossession must be by an ouster ; and I say to you that to void the deed from A, the record title owner, the ouster must be of the same character as that required to establish adverse possession. I stated that an ouster must be of the same character. It must be an open, visible, exclusive possession that is to make an adverse possession. It need not continue for years, but the character of the ouster must be of the same character as in the case of adverse possession of years, claiming to convey title, or amount to that. 25 § 555. — South Carolina. Suppose that the sheriff's sale and the deed made in pursuance of that sheriff's sale was a nullity, yet the deed purports to des- ignate by metes and bounds a tract of land and purports to con- vey that land to A. That becomes a description of the land, showing the extent of A's claim under the deed, so it becomes what we call color of -title, and by way of writing that shows the extent of the party's claim under the deed, and if A took pos- session of that acres of land under that deed or supposed deed, and held it continuously, either himself or by somebody that 24 — Edmondson v. Anniston City 25 — Merwin v. Morris, 71 Conn. Land Co., 128 Ala. 589. 555. Blashfield Vol. 1—67 1058 ' Forms op Instruction's. [§ 555 was holding it under him and in pursuance of some arrangement with him, if he held it continuously for years from the date of that sheriff's deed, , that would be sufficient to es- tablish in A a title by adverse possession, as I told you a while ago. As the law now is, years' adverse possession gives title, but in 19 — when this sale was alleged to have been made, it required years. If it appears that A took possession of the land contained in that deed of B, acting as sheriff, and held it continuously for years, that would give title in him to all the land embraced in that deed now, by virtue of the sale, and by virtue of the bar of the statute of limitations; so if he had held the land for years adversely and continuously, that forbids any other person to claim the land as against him. If he had title by conveyance from the sheriff and by the years' adverse possession and died, and that title descended to his heirs, then the conveyance by those heirs to C in 19 — would confer upon C a good title to the land, and if that should be your conclusion, then the plaintiff must recover, unless there is something else to show that she has been ousted of her right to recover. You will observe then that the years' possession from the date of the sheriff's deed in 19 — , if it was adverse, whether A held it himself by hostile possession or permitted somebody else to hold it by some arrangement under him, would give him title. Only adverse holding would give him title by adverse possession. Under the statute, peaceable possession whether he held it him- self or by those living on the land who recognized his right su- perior to theirs, peaceable possession of the land would presume he held it because of a grant from the state, either to himself or to somebody else and the grant came to him, so if he held the land ■ — — • years either peaceably or adversely, continuously, openly, and notoriously, and exclusively of everybody else's rights, even though he may have allowed other people to live there, if they lived there in recognition and in subordination of his rights, then that establishes in A the title which this plaintiff relies on, and that title passing to the plaintiff and her children by inheritance § 557] Adveksb Possession. 1059 would inure to them now as a valid title, upon which they would be entitled to recover the land. 26 B. ACTUAL POSSESSION. § 556. In general. The court instructs the jury that to constitute an actual pos- session of land it is only necessary to put it to such use or exercise such dominion over it as in its present state it is reasonably adapted to. 27 § 557. Entry — Necessity — Intent. The court instructs the jury that if they believe from the evi- dence that the grantors of defendant had no title or possession to the premises described in their deed to him of lot No. — , dated , and recorded , it could not control and ride over the recorded deed of B to plaintiff, or affect the possession of the plaintiff of the premises in dispute, if his possession was such, under the instructions aforesaid, as would constitute a disseizin of the true owner; that the delivery and registry of the deed to the defendant of lot No. — , would not purge the disseizin of the plaintiff, (if the latter had acquired such a pos- session as constitutes a disseizin according to the foregoing in- structions, or, if the disseizin was constituted by the delivery and recording of the deed of E to him,) without an entry into some part of the disputed premises. But, if the defendant had the title to the premises in dispute, under the deed to him from and wife, or the right of entry therein, the dis- seizin might be purged by an entry. And, in regard to an entry, the intent with which it is made, generally determines its char- acter, and consequently, the effect of the act. The mere act of going upon the land and cutting trees upon it, will not always constitute a legal entry sufficient to vest the seizin in him who has the legal right. In order to constitute a legal entry, the party must go upon the premises with that intent. 28 26— Kennedy v. Kennedy, 86 S. C. 28— Gardner v. Gooch, 48 Me. 487. 483. 27 — Alabama State Land Co. v. Matthews, 168 Ala. 200. 1060 Foems op Instbtjctions. [§ 558 § 558. Visible and notorious character of possession in general. §559. — Alabama. The court instructs the jury that openness and notoriety and exclusiveness of possession are shown by such acts in respect of the land in its condition at the time as comport with ownership — such acts as would ordinarily be performed by the true owners in appropriating the land or its avails to his own use, and in pre- venting others from the use of it as far as reasonably practi- cable. 29 The court instructs the jury that the idea of adverse possession is inconsistent with and repugnant to the idea of a secret or furtive possession. 30 The court instructs the jury that the possession of land which the law protects is open and notorious possession, and not a secret or furtive possession. 31 §560. —Michigan. The court instructs the jury that, to constitute possession it is not necessary that the land should be enclosed with a fence, or that the same should be cultivated, resided upon or that buildings should be erected thereon. It is sufficient if the acts of owner- ship are of such a character as to openly and publicly indicate an assumed control or use, such as are consistent with the char- acter of the premises in question. If you find in the spring of , or the summer of that year, after getting his deed, began the exercise of such acts of ownership and control as are usual by owners of timber lots when used to supply a farm in the neighborhood with timber, and his acts were of such an adverse, open, notorious and hostile nature as to clearly indicate that he asserted exclusive control over it, and that he continued to do so up to the time of his selling to defendant, and that after- wards, defendant continued with like acts, you would be justified in finding that defendant had been in such possession as to bar 29 — Alabama State Land Co. v. 31 — Edmondson v. Anniston City Matthews, 168 Ala. 200. Land Co., 128 Ala. 589. 30 — Edmondson v. Anniston City Land Co., 128 Ala. 589. § 564] Adveese Possession. • 1061 any claim of title upon the part of the plaintiff, and your ver- dict should be for the defendant. 32 §561. —North Carolina. The court instructs the jury that, if A's acts in cutting the timber were committed without the knowledge or acquiescence of the defendants, they would not affect their claim or impair their rights, but it would be otherwise if he was recognized by the de- fendants as acting for and in behalf of the plaintiffs. 33 §562. - Texas. The court instructs the jury that peaceable and adverse pos- session is one that was actual, continuous, visible, notorious, dis- tinct, hostile — that is, fedverse — fair, and open and of such a character as to indicate clearly a claim of ownership in the occu- pant. 34 § 563. Inclosure, improvements and cultivation. § 564. — Alabama. The court instructs the jury that the burden of proving ad- verse possession is upon the defendant; and, if the evidence fails to reasonably satisfy the jury that a sufficient portion of the lands in suit was within defendant's inclosure, that would attract the attention of a reasonably prudent owner that the inclosure in- cluded a portion of the land in suit, then such inclosure would not be sufficiently notorious to extend the possession to the lands outside the inclosure. 35 The court instructs the jury that, in order to sustain the de- fense of adverse possession, the possession must have been actual, open, notorious, and continuous for a period of years before suit brought; and, if the possession was of such a small portion of the land sued for that a reasonable prudent owner would not have, notice from it that his lands were included in such inclosure, then the possession would be insufficient to sustain the defense 32 — Murray v. Hudson, 65 Mich. 35 — Lawrence v. Alabama State 670. Land Co., 144 Ala. 524. 33— Hill v. Bean, 150 N. C. 436. 34 — Hunter v. Malone, 49 Tex. Civ. App. 116. 1062 Foems op Instkuctions. [§ 564 of adverse possession of any of the lands sued for outside of the inclosure. 30 § 565. — Connecticut. The court instructs the jury that neither physical occupation, cultivation, nor residence is necessary to constitute actual adverse possession, when the property is so situated as not to admit of any permanent useful improvement, and the continued claim of the property has been evidenced by open, visible, continuous acts of ownership, known to and acquiesced in by the real owner, or so far notorious as to to be presumed to be within his knowl- edge. 37 §566. —Georgia. • The court instructs the jury that there is a use and occupa- tion of land within the law where the land is used for turpentine purposes, and such use is so notorious as to attract the attention of every adverse claimant and so exclusive as to prevent actual occupation by another. If you believe from the evidence that the trees on the land were cultivated for turpentine purposes and the timber was boxed and that for a considerable portion of the time during the year the trees were chipped and hacked and the hands were continually dipping turpentine from the trees and were hauling the turpentine away and the trees were racked around to protect them from fire, I charge you that this would be actual possession if you find it to be true. 38 § 567. — Kentucky. The court instructs the jury that if they should believe from the evidence that the plaintiff, , had the actual ad- verse possession of the tract of land sued for, continuously and uninterruptedly, for years or more before , 19 — , claiming the same openly 'and notoriously as her own, adversely to all others, then and in that event the jury should find for the SS^-Lawrence v. Alabama State Ga. 592. This instruction was held Land Co., 144 Ala. 524. not to be open to objection of ex- 37 — Merwin v. Morris, 71 Conn. pressing opinion on weight of evi- 555. dence. 38 — Flannery v. Hightower, 97 § 570] Adverse Possession. 1063 plaintiff the lot of ground sued for. And the court instructs the jury that if they should believe from the evidence that the plain- tiff had said lot under enclosure, and claimed said land as her own then she was in the actual adverse possession of said lot in the meaning of the instructions. 39 § 568. — Maine. The court instructs the jury that if the plaintiff's possession of the premises in dispute was open, notorious, exclusive and ad- verse, comporting with the usual management of a farm by its owner, though a portion was woodland and uncultivated, and though not wholly surrounded by fences, or rendered inaccessible by other obstructions, it would constitute a disseizin of the true owner, unaffected by other facts. 40 §569. —Michigan. The court instructs the jury that you cannot presume that the owner of the , in going along the highway where the fence is shown to be nearly on the line, and seeing a fence extend- ing north, has thereby notice that the fence incloses any portion of his land. On the contrary, he is justified in assuming that his neighbor is only enclosing what he is entitled to. 41 §570. —Missouri. If T and his representative took the actual possession of the G tract, by fencing up the whole of it, and held such possession, claiming the tract in fee, for more than (time prescribed by statute) prior to the entry of defendants, and those under whom they claim, such possession vested the fee in said T 's representa- tives. 42 The court instructs the jury that, if you believe from the evi- dence in the case that the land in controversy or any consid- erable part thereof was susceptible to definite occupation or possession, — that is, that said land or any part thereof was fit for 39 — Louisville & N. B. Co. v. 42 — Farrar v. Heinrieh, 86 Mo. Eayl, 32 Ky. L. Rep. 870. 521. 40 — Gardner v. Gooch, 48 Me. 487. 41 — Hockmoth v. Des Grand Champs, 71 Mich. 520. 1064 Foems of Instbuctions. [§ 570 pasture or cultivation without clearing or cutting away the tim- ber thereon — then in order to constitute the possession of plaintiff or that of those under whom he claims adverse as required in the foregoing instruction, you must believe from the evidence in the cause that the plaintiff or his grantor M., either in person or by their tenants, built permanent structures on said land or actually enclosed or cultivated said land or some part thereof for the period of (the period prescribed by statute) prior to the insti- tution of this suit, and that it is not sufficient in such a case that plaintiff and his grantor M paid the taxes on said land, kept off trespassers, cut timber, erected temporary structures and pastured hogs thereon under a claim of ownership. 43 The court instructs the jury that if you believe from the evi- dence in the case that the land in controversy or any considerable part thereof, was susceptible of a definite occupation or posses- sion, that is, that said land or any part thereof was fit for pasture or cultivation without clearing or cutting away the timber therein — then in order to constitute the possession of plaintiff or that of those under whom he claims, adversely, you must believe from the evidence in the case that the plaintiff or his grantor, either in person or by their tenants built permanent structures on said land or actually inclosed or cultivated said land or some part thereof for the period of (period prescribed by statute) prior to the institution of this suit, and that it is not sufficient in such a case that plaintiff and his grantor paid the taxes on said land, kept off trespassers, cut timber, erected temporary structures, and pastured hogs thereon under a claim of ownership. 44 § 571. — Nebraska. The court instructs the jury that if you believe from, the evi- dence that the defendant, not less than (time prescribed by stat- ute) prior to the commencement of this suit, entered into possession of the lands in controversy and cultivated said lands or fenced the same, or erected improvements of any kind thereon or did any other acts of such a character as to clearly show that he was occupying said lands and claiming the same as his own, 43 — Cook v. Farrah, 105 Mo. 492. 44 — Cook v. Farrah, 105 Mo. 492. § 574] Adverse Possession. 1065 and during all of said time continued to so occupy said lands, claiming during all of said time to be the owner of the same, and never during any of said period of abandoned said land, but during all of said time continued openly, notoriously, adversely and exclusively to occupy and claim the same as his land, then you are instructed that said acts on the part of defend- ant would constitute adverse possession within the meaning of the law and would entitle the defendant to a verdict at your hands. But if the defendant has failed to establish any of said acts by a preponderance of the evidence your verdict should be for the plaintiff. 45 § 572. — Texas. The court instructs the jury that if you believe from a pre- ponderance of the evidence that the defendants, and those under whom they claim, have had peaceable and adverse possession (as those terms have been defined) of the land described in the- de- fendants' answer; claiming, cultivating, using, 'or enjoying the same, by defined metes and bounds, continuously for years before the filing of this suit on the day of , 19—, you will find for defendants. 48 §573. —Wisconsin. The court instructs the jury that for the purpose of constitut- ing adverse possession by a person claiming title not founded upon some written instrument or some judgment or decree, land shall be deemed to have been possessed and occupied in the fol- lowing cases only: (1) When it has been protected by a substan- tial inclosure; (2) When it has been usually cultivated and improved. 47 § 574. — United States. The court instructs the jury that if the tenants, under their respective leases from , occupied and cultivated to the T line, in such a manner as the owners of such land would 45 — Hbffine v. Ewings, 60 Neb. 47— Bartlett v. Secor, 56 Wis. 520. 729. 46— Texas & N. O. E. Co. v. Broom, 53 Tex. Civ. App. 78. 1066 Foems of Insteuctions. [§ 574 ordinarily occupy and cultivate, and such occupation had con- tinued for the period of (time prescribed by statute) -it would constitute such an adverse possession as would bar the defend- ant's right to recover. 48 § 575. Cutting grass or fire wood §576. — Connecticut. The court instructs the jury that an occasional use of the land, such as the occasional cutting of grass or fire wood, will not be sufficient to establish adverse possession. 49 § 577. — Maine. The court instructs the jury that if plaintiff cut the grass upon a natural fresh meadow, and carried the hay away and converted it to his own use, annually for any period of time, however long, without any other possession of the land on which it grew, or any claim of title to the land, such acts alone would not constitute an adverse possession against the true owner of the soil. 50 § 578. Piling wood or lumber on land. The court instructs the jury that the mere piling of wood or lumber or rails or offal upon a tract of land or lot, unaccompa- nied by any other act denoting ownership, is not such possession of the land or lot as would constitute notice to a bona fide pur- chaser of such tract of land or lot, unless such piling of wood or lumber should constitute, in the estimation of the jury, an open, visible and exclusive possession of the lot in the person piling such wood or lumber. 51 § 579. Wild land. The court instructs the jury that if you are reasonably satis- fied from the evidence that the plaintiff and those under whom he claims had such an adverse possession of the land as, from its wild nature, it was susceptible of, for years prior to the 48 — Reed v. Proprietors of Locks 50 — Gardner v. Gooch, 48 Me. 487. & Canals on Merrimae Eiver, 8 How. 51 — Truesdale v. Ford, 37 111. 210. (U. S.) 274, 12 L. Ed. 1077. 49 — Merwin v. Morris, 71 Conn. 555. § 582] Adverse Possession. 1067 time that A [defendant] entered into possession, then your ver- dict must be for the plaintiff. 52 C. CONTINUITY OF POSSESSION. §580. Necessity. The court instructs the jury that it is not sufficient to consti- tute the possession referred to in the preceding instruction, that the said K should have occasionally used such property for the purposes of a printing office during a period of time equal to (time prescribed by statute) or more, but such possession, in order to bind the true owner, must have been continuous and unequivocal. 53 § 581. Occasional absence of occupant or tenant. The court instructs the jury that where the adverse occupant of land leaves it temporarily, with the intention of returning, his possession continues during such occasional absence, and so if the tenant quits the premises the landlord is to be regarded as still in possession if by taking possession himself, or putting in another tenant as soon as one can be procured, within a reason- able time, he gives evidence that he does not intend to abandon the land. An interval of two or three months, or from the har- vesting of cultivated crops in the fall to the resumption of culti- vation in the spring, does not of itself amount to abandonment or a break in the continuity of possession. 34 § 582. Interruption by claim of tenant or tenant's wife. The court instructs the jury that if they find from the evidence that A went into possession of said lands in 19 — under a lease or as tenant of his son, B, and that C entered on said lands as his wife, then any claim of the said C during said tenancy of her husband to the lands, while sh.e lived on them with her said hus- band, he having entered on. them under a lease from B, would not have made a gap or chasm in said B's possession while her husband occupied as the tenant of B. 55 52 — Owen v. Moxom, 167 A}&. 615. 55 — Barron v. Barron, 122 Ala. 53 — Mertens v. Kielmann, 79 Mo. 194. 412. 54 — Mahoney v. Southern By., Carolina Div., 82 S. C. 215. 1068 Forms of Instructions. [§ 582 The court instructs the jury that if they find from the evidence that A's going on the lands with her husband [B], and that. her husband went on them under contract with C and C promptly expelled B from the lands when he found out the lands were claimed against him, such going on the lands by A would not interrupt the statute of limitations, if it had begun to run. 56 The court instructs the jury that if they find from the evidence that A went on the lands sued for in 19 — under a lease or as tenant of B, and after going on said lands, he set up a claim to the lands in his own right or in the right of his wife, C, whilst his tenancy lasted, and that said B, on ascertaining that said A was setting [up] such claim to said lands and property, instituted a suit of unlawful detainer against him and vigorously prosecuted the same, and in such suit recovered possession of said iands, then such possession and claim to the lands by the said A would not make such a gap or chasm in the possession of B as would break its continuity, if said B was in the adverse possession of said lands. 57 § 583. Tacking possessions — In general. § 584. — Missouri. The court instructs the jury that if defendants, and those un- der whom they claim, have had adverse possession of so much of the premises described in the petition as is covered by the building of defendants, and said possession was open, notorious and hostile, under claim of title, and continuous for more than (time prescribed by statute) prior to the institution of this suit, on the day of , 19 — , then the plaintiffs cannot recover the portion of said premises so covered by said building. 58 § 585. — South Carolina. * The court instructs the jury that the defendants could tack the time during which they had held possession with the, time 56 — Barron v. Barron, 122 Ala. 58 — Dalton v. Bank of St. Louis, 194. 54 Mo. 105. ' ,57 — Barron v. Barron, 122 Ala. 194. § 588] Adverse Possession. 1069 during which those under whom they claim held possession, so as to complete the statutory terms of adverse possession. 59 § 586. — United States. The court instructs the jury that to defeat the claim of the plaintiffs in this action upon the defense of adverse possession, the jury must find from the evidence that the defendants, in per- son or by their tenants, have for more than (time prescribed by statute) prior to the day of , 19 — , held actual, ex- clusive, continuous, open, notorious, and adverse possession of the said premises, and they cannot extend their possession by tacking it to the prior possession of any person who, during such prior possession, did not claim any title or right to the premises." The court instructs the jury that if the possession of , in 19 — , under K, included the demanded premises, and the same possession had been continued by the subsequent lessees, as the evidence tended to show it had. been, down to the entry of the heirs of M and wife, in 19 — , it constituted in law such a continu- ity of possession as would bar the demandant 's right to recover. 61 § 587. Same — Vendor and purchaser. §588. — Alabama. The court instructs the jury that if they find from the evidence that A was in the actual -adverse possession of the lands, claim- ing them as his own, for more than consecutive years prior to the day of , 19 — , or if they find from the evidence that B [the widow of C] was in the actual adverse possession of the lands, claiming them as her own, and she sold them to A and turned her possession over to him, and the actual adverse pos- session of the two when added together covered a period of more than consecutive years just prior to the — *- day of , 19 — , then this was sufficient to take the title out of the heirs of C's first wife; and the court further charges the jury that the moving in of third parties on the land would not constitute a 59 — Sutton v. Clark, 59 S. C. 440, 61 — Reed v. Proprietors of Locks 82 Am. St. Rep. 848. & Canals on Merrimao River, 8 60— Holtzman v. Douglas, 168 U. How. (U. S.) 274, 12 L. Ed. 1077. S. 278, 42 L. Ed. 466. . 1070 Forms of Instructions. [§ 588 break in the adverse holder's possession, if said adverse holder took prompt action in the court to remove them, and did remove them. 82 The court instructs the jury that it makes no difference when the adverse possession of A [vendor] and that of B [purchaser] , respectively, commenced, if the jury find from the evidence that both together held the land adversely for more than con- secutive years before the day of , 19 — . 6S The court instructs the jury that if they believe from the evi- dence that A [vendor] and B [purchaser] had actual adverse possession of the lands sued for, claiming them as their own, and cultivating them, openly and notoriously for more than years before suit was brought for their recovery in , 19 — , then their verdict must be for the plaintiffs. 64 The court instructs the jury that if they find from the testi- mony that the possession of the property sued for has been open, notorious, adverse and exclusive in A, and those to whom she sold, for years next before the commencement of the present suit, they must find for defendants. 65 The court instructs the jury that if they find from the evi- dence in this case that A and these defendants together have held the lands in controversy openly, notoriously and adversely and exclusively under a claim of title from the year 19 — , then the defendants have a good title, and the plaintiff can not recover. 00 §589. —Illinois. The court instructs the jury that, if you believe, from the pre- ponderance of the evidence, that the grantors of the plaintiff held the open, notorious, adverse, hostile, peaceable, uninterrupted and continuous possession of the land in question for some time, un- der claim of ownership thereto, and that they conveyed one from another down to the plaintiff herein, and that under said con- 62— Barron v. Barron, 122 Ala. 65— Stiff v. Cobb, 126 Ala. 381, 85 194. Am. St. Eep. 38. 63— Barron v. Barron, 122 Ala. 66 — Stiff v. Cobb, 126 Ala. 381, 85 194. Am. St. Bep. 38. 64 — Barron v. Barron, 122 Ala. 194. § 591] Advebse Possession. 1071 veyance the plaintiff took possession of the land in question and held the open, notorious, adverse, hostile, peaceable, uninter- rupted and continuous possession thereof, under claim of owner- ship, from the time of such conveyance to the time it is alleged in the declaration that the defendant took possession thereof, and that such possession of the said grantors of the plaintiff and the possession of the plaintiff together amount to a period of (time prescribed by statute) or more prior to the time it is alleged in the declaration that the defendant took, possession thereof, then the plaintiff would be the absolute owner of the said land, if you further believe, from the preponderance of the evidence, that the defendant took and unlawfully withheld from the plaintiff the possession thereof as alleged in the declaration, then you should find a verdict for the plaintiff. 67 § 590. Same — Landlord and tenant. § 591. — Alabama. „ The court instructs the jury that if A was in possession of the land sued for, for more than years prior to 19 — , claiming to own the same as his own, or as a partner in the firm of B & Co., and remained in possession until the time that C bought from him, and that after C's purchase he, the said C, remained in possession until the delivery of the possession to D [plaintiff], by him under his deed, and the said D, acting through his tenants, remained in possession of the same until E [defendant] ousted him in the fall of 19 — , then your verdict must be for the plain- tiff." The court instructs the jury that if the jury find from the evi- dence that A, by himself arid tenants, was in the actual adverse possession of the lands sued for, claiming them as his own, for more than consecutive years prior to the day of , 19 — , then this was sufficient to devest the title out of the heirs of the first wife of B, if they ever had title, and invest the title in A. 69 67 — Lourance v. Goodwin, 170 111. 69 — Barron v. Barron, 122 Ala. 390. 194. 68 — Owen v. Moxom, 167 Ala. 615. 1072 Forms of Instructions. [§ 592 § 592. — Georgia. The court instructs the jury that the possession of the tenant is in the right of the person under whom he holds, and though such enters under only an oral lease, his possession inures to the benefit of the person under whom he holds, and if such possession of a tenant should continue for — years, and should have the necessary qualities which the law gives it, the person who put the tenant in possession would, if he had good color of title, acquire title by prescription. 70 § 593. — United States. The court instructs the jury that the possession of the premises by said lessees, under the lease, was the possession of K, the lessor, and his heirs, he claiming to have a deed which included them, and having turned M out of possession, if it was of such a char- acter as amounted to a disseizin, it would in law inure to the benefit of K, and his heirs, and would be the disseizin and adverse possession of the lessor. 71 d. hostile character op possession. § 594. Claim of title — In general. § 595. — Alabama. The court instructs the jury that, if you believe from all the evidence in the case that at the time defendant claims to have gone into possession of the lands described in the complaint he did so in subordination of the mortgagee's rights in the case by agreeing to pay part of the mortgage debt, then you would find against the defendant on the question of adverse possession. 72 The court instructs the jury that to constitute adverse posses- sion there must be an actual claim of present ownership, accom- panied with possession and a possession with a mere intention to claim in the future is not adverse possession. 73 70— Smith v. Donalson, 137 Ga. 72 — Ballard v. Bank of Roanoke, 465. 187 Ala. 335. 71 — Reed v. Proprietors of Locks 73 — Edmondson v. Anniston City &' Canals on Merrimao River, 8 How. Land Co., 128 Ala. 589. (U. S.) 274, 12 L. Ed. 1077. § 596] Adverse Possession. 1073 The court instructs the jury that if they find from the evidence that A is the widow of the deceased, "B, and occupied the prop- erty as such widow, and that she claimed the property, her claim is presumed to be in accordance with her right as such widow, and if her claim was as such widow there is no question of adverse possession by defendant. 74 The court instructs the jury that if the jury believe from the evidence that A took possession of the land sued for as the widow of B, then the plaintiff is entitled to recover, unless the evidence has reasonably satisfied their minds that the plaintiff or those under whom he claims knew that she was holding the lands ad- versely. 75 The court instructs the jury that the actual claim of the lands sued for, without any reference to whether or not the claimants thought the title was good, is all the law requires as an element of claim of adverse possession. 78 §596. —Iowa. The court instructs the jury that if you believe, from the evi- dence introduced on the trial of this case, that defendants purchased the land in controversy from , by an assign- ment of a contract of purchase from one J, and thereby derived the first claim they ever made to the land in suit; and afterwards sued and obtained the purchase money paid for said land by their assignor, J, or themselves, by reason of an alleged want of title in said railroad company, then such action on the part of defend- ants amounts to an abandonment of all rights claimed or acquired by the defendants in and to the title to the land in ques- tion, up to the time of receiving such repayments of the purchase money, and their claim of title now made must commence from 74 — Hays v. Lemoine, 156 Ala. 465. that the holding of land beyond the 75 — Hays v. Lemoine, 156 Ala. true boundary line is not adverse 465. when the intention has been to 76 — Barron v. Barron, 122 Ala. claim only to the true line wherever 194. it may be, see Cooper v. Slaughter, For an instruction to the effect 175 Ala. 211. Blashfleld Vol. 1—68 1074 Forms of Instbtjctions. . [§ 596 the date of the receipt of such purchase money, if you find such claim has been made by defendants. 77 The court instructs the jury that if defendants, during the time they have held this land in dispute, only claimed to own the im- provements made on said land, then no length of possession will give them title to the land in dispute; and in considering this case you will take into consideration the acts and declarations of the defendants and their statements of the claim made by them, and if the evidence offered upon the trial 6f this cause satisfies you that the claim of defendants was a claim for improvements only, then you must find for the plaintiffs. 78 The court instructs the jury that such possession must be un- der a claim of title or right to the land occupied; or, in other words, the fact of possession, and the intention with which it was commenced and held, are the only tests. If, therefore, the inten- tion of claiming the title to the land against the true owner is wanting, the possession will not be adverse, and, however long continued, will not bar the owner's right to recover. 79 The court instructs the jury that on the other hand, if when the defendants took possession of the strip of land in controversy he only intended to occupy and claim the government subdivision of the land described in his deed, but by mistake extended his possession too far north and included the disputed strip, and has since occupied and cultivated it with no intention of claiming it as his own, unless it was in fact included within the true boundaries of the land described in his deed, then his possession, however long continued, was not adverse; and if you so find, your verdict will be for the plaintiff. 80 The court instructs the jury that if at the date this suit was commenced the defendant had been in peaceful and exclusive possession of the land up to the north line of the disputed strip and cultivated and claimed it as his own, and such claim of own- ership has been open, notorious and adverse to all the world for 77 — Davenport v. Sebring, 52 79 — Davenport v. Sebring, 52 Iowa 364. Iowa 364. 78 — Davenport v. Sebring, 52 80 — Heinz v. Cramer, 84 Iowa 497. Iowa 364. § 600] Adverse Possession. 1075 more than (time prescribed by statute), then his possession and claim has ripened into a good title, and if you so find, your ver- dict will be for the defendant. To be adverse, however, the hold- ing or possession of the defendant must have been with the intention of insisting upon his right to the land in controversy as against all others and not by mere mistake as "to the location of the line as fixed by the government survey. 81 § 597. — Nebraska. The court instructs the jury that adverse possession sufficient to defeat a legal title must be hostile in its inception and con- tinue uninterruptedly for (time prescribed by statute). It must also be open, notorious, adverse and exclusive and must be held during all of such time under a claim of ownership by the occu- pant and all of these facts must be proved by a preponderance of the evidence. 82 § 598. — West Virginia. The court instructs the jury further that the defendants to make out a title by adverse possession must show that such pos- session was adverse in its inception, and where the entry is under the title of the legal owner, the holder cannot controvert that title without an express disclaimer, or its equivalent, and the as- sertion of an adverse title with notice to the owner. 83 § 599. Same — Notice to, or knowledge of owner. § 600. — Alabama. The court instructs the jury that if they believe from the evi- dence that A went into possession of the lands sued for as the widow of B, then the statute of limitations will not begin to run in her favor until knowledge of such adverse claim is brought home to the plaintiff or those under whom he claims. 84 81 — Heinz v. Cramer, 84 Iowa 497. of another word than "hostile," as Provides for contingencies that that word savors of ill will, statute of limitations might have 83 — Maxwell v. Cunningham, 50 been set in motion by agreement re- W. Va. 298. specting line. 84 — Hays v. Lemoine, 156 Ala. 82 — Hoffine v. Ewings, 60 Neb. 465. 729, though court suggests the use 1076 Fobms of Instetjctions. [§601 §601. —Michigan. The court instructs the jury that the owner need not move to retake possession till he learns or ought to know that his lands are taken possession of. 85 § 602. — North Carolina. The court instructs the jury that the ignorance of the plain- tiff as to'the correct location of the line, and as to the adverse possession by the defendant of what he alleges is a part of his tract, would not affect the right of the parties. 86 § 603. — Virginia. The court instructs the jury that there can be no adverse pos- session of lands where the possession is consistent with the title of the true owner, as where the occupant has leased or acknowl- edged the title of the claimant, and a tenancy once shown to exist is presumed to continue until the contrary be proven, and no adverse possession can be set up by the tenant or anyone entering upon the land under the tenant until full notice of the denial of landlord's title is brought home to the landlord, and the statute of limitations only begins to run from the time the land- lord had such notice. 87 E. PAYMENT OP TAXES. § 604. In general. § 605. — Illinois. The court instructs the jury that so far as the claim of plain- tiffs, founded upon color of title and payment of taxes for (time prescribed by statute) consecutive years while the land was vacant and unoccupied and possession thereafter taken, is concerned, to establish title on that basis it must appear, from a preponderance of the evidence, that throughout the entire period, from the first to the last of such payment of taxes, the land was vacant and unoccupied. 88 85 — Hockmoth v. Des Grand 87 — Beusens v. Lawaon, 91 Va. Champs, 71 Mich. 520. 226. 86— Pittman v. Weeks, 132 N. C. 88— Scott v. Bassett, 186 111. 98. 81. § 609] Adverse Possession. 1077 §606. —Minnesota. The court instructs the jury .that payment of taxes and assess- ments for local improvements tends to prove claim of ownership and title to land. Likewise, total failure to pay any taxes or assessments for local improvements tends strongly to prove lack of claim of title and ownership of land by the person in pos- session. 89 II. Operation and Effect. A. EXTENT OF POSSESSION. §607. Constructive possession — Definition. The court instructs the jury that "constructive possession" of lands is where a person having paper title to a tract of land is in actual possession of a part thereof. In such a case the law con- strues that possession to extend to the boundaries of the tract. 90 §608. Same^Sufliciency. §609. —Alabama. The court instructs the jury that if adverse possession is held without color of title such possession is limited to the portion actually occupied, and if the deed from A was not actually made until 19 — , then B 's possession prior to that time is limited to the part actually occupied by him. 91 The court instructs the jury that if they find from the evidence that defendant has from the latter part of , 19 — , up to the day of — , 19 — , had adverse possession of ^ny portion of the land sued for, that then he had adverse possession of the whole of it, that was not actually occupied and held adversely to him, and that plaintiff would not be entitled to recover any portion of it, unless the jury find from the evidence that plain- tiff has acquired title by adverse possession. 92 89 — Peters v. Tackaberry, 117 91 — Edmondson v. Ahniston City- Minn. 373. Land Co., 128 Ala. 589. 90 — Smith v. Donalson, 137 6a. 92 — Anniston City Land Co. v. ' 465. Edmondson, 127. Ala. 445. 1078 Forms op Instructions. [§ 610 § 610. — Maine. The court instructs the jury that if the plaintiff's possession of the premises in dispute was open, notorious, exclusive and adverse, comporting with the usual management of a farm by its owner, though a portion was. woodland and uncultivated and though not wholly surrounded by fence or rendered inaccessible by other obstructions', it would constitute a disseizin of the true owner unaffected by other facts. 93 The court instructs the jury that if they believe from the evidence that plaintiff, upon receiving and recording the deed from E. to him, dated , entered upon the land therein described, and continued to have a visible possession, occupancy, and improvement of only a portion thereof, such occupation and improvement, uncontrolled by other facts, were a disseizin of the true owner as to the whole of the land described in the deed, though E. might not have had title thereto. 94 §611. —Texas. The court instructs the jury that the fencing and possession of the acres in connection with defendant's adjoining tract would not support defendant's claim of title by limitation to land beyond the defendant's original inclosure, unless such fencing and possession of said acres of land in connection with all the other acts and conduct of the defendant, if any, in reference to said land, were sufficient for — years next before the — day of , 19 — , to put a reasonably prudent person on notice that the defendant was claiming title to all the land. 95 § 612. — West Virginia. The court instructs the jury that if the adverse possession should be held as in the above instruction for (time prescribed by statute) before the commencement of the action under claim of title, the person claiming adversely will be limited in the adverse holding to his actual inclosure, if Under color of title 93 — Gardner v. Gooch, 48 Me. 487. 95 — Hedrick v. Kilgore, 57 Tex. 94 — Gardner v. Gooch, 48 Me. 487. Civ. App. 47. § 615] Advebse Possession. 1079 then the adverse holding will extend to the boundaries contained in the deed or writing that constitutes his color of title. 98 B. TITLE ACQUIRED. § 613. Effect of survey after acquisition of title. The court instructs the jury that if the plaintiff had acquired a good title to the land in controversy by adverse possession under a claim of title for more than — years, a subsequent survey, made for the purpose of finding the true south line of the land, upon the consent and agreement of the plaintiff that the survey should be made, would not affect his title to the said land. 97 III. Pleading, Evidence and Trial. § 614. Pleading — Issues and proof. The court instructs the jury that the party who relies on adverse possession of land under color or claim of title, to defeat the legal right of the owner of the land must show : 1. His color or claim of. title and that it covers the land, or a part of the land in controversy. 2. That he entered under said claim or color of title upon said land in controversy or some part thereof. 3. That his entry was hostile and adverse to the party having the legal title and was actual, visible, and exclusive, and 4, Must have so continued hostile, actual, visible, unbroken, under said color 'or claim of title for (time prescribed by statute) before the com- mencement of the action to dispossess. 98 § 615. Evidence — Presumptions and burden of proof — Ownership of land. The court instructs the jury that if A was in possession of the land, claiming to own it, such possession would carry with it the presumption that so long as she continued in possession she owned the land. But if she abandoned her possession, moved off the land, with no intention of returning, and defendant entered under 96 — Maxwell v. Cunningham, 50 98 — Maxwell v. Cunningham, 50 W. Va. 298. W. Va. 298. 97 — Fatic v. Myer, 163 Ind. 401. 1080 Fobms of Instructions. [§615 claim of right of title, then the presumption that A owned the land ceased, and the presumption would be that defendant owned the land from the time of his entry and claim of ownership." § 616. Same — Same — Existence of adverse possession. The court instructs the jury that the adverse possession of land is a fact continuous in its nature, and that if it be shown to have existed at any time it will be presumed to have continued thereafter until evidence is adduced showing that it is not. 1 § 617. Same — Same — Continuance of adverse possession. The court instructs the jury that adverse possession is not to be made out by inference, but by clear and positive proof. 2 § 618. Same — Weight and sufficiency. The court instructs the jury that if they believe from the evidence that the defendant A made an agreement with the plaintiff to have the line dividing the northern portion of section — , and the southern portion of sefction — , township — , range — west, ascertained by a survey, the jury may look to such an agreement, in connection with all the other evidence, in determin- ing whether the possession of the defendants has been adverse or not. 3 The court instructs the jury that if you believe from the evidence that plaintiff had possession of the land and occupied the land in question, cultivating, Using, and enjoying the same by himself and tenants for — consecutive years prior to the filing of this suit, but you should further believe that thereafter the plaintiff acknowledged himself to be the tenant of the defendant, either in writing or verbally, you will only consider such acknowl- edgment of tenancy, if any, as bearing upon the nature of plaintiff's prior possession; that is, whether the same was adverse to defendant or not. 4 99 — Vidmer v. Lloyd, 184 Ala. 3 — Cooper v. Slaughter, 175 Ala. ' 153. 211. 1 — Alabama State Land Co. v. 4 — Wiokizer v. Williams, — Tex. Matthews, 168 Ala. 200. Civ. App. — , 173 S. W. 288. 2 — Merwin v. Morris, 71 Conn. 555. § 619] Adveese Possession. 1081 The court instructs the jury that they may look to the fact in evidence that A has in the past made conveyances of parts of block — for the purpose of explaining in connection with the other evidence the nature of her claim to the property sued for. 5 The court instructs the jury that if they are satisfied from the whole evidence that this property was originally paid for with the money of A, or that the property for which the property in controversy was exchanged was so paid for, this may he looked to by the jury in connection with all the other evidence determin- ing the nature of the possession alleged to be held by said A. 6 The court instructs the jury that if they find that the plaintiff entered into possession of the land in dispute, under the paper introduced in evidence as exhibit A, purporting to be signed by R under a claim of ownership, and if they find that he has personally or by his tenants continued in possession thereof for more than (time prescribed by statute), then the jury musfrfind that he is presumed to have obtained a grant from the state. 7 § 619. Questions for jury. The court instructs the jury that defendant S, alleges that he went into possession of the tract of land described in the petition of that he is now living on said tract of land, and th.at ever since going into possession of he has been in open and notorious possession of said land, claiming the same all of the time as his own, and defendant charges that the statute of limitations is a complete bar to the plaintiff's claim; and the court instructs the jury that if they believe from the evidence that the deed from W to the defendant S, conveying certain lands and under which deed the defendant S claims to enter into pos- session of the lands described in the complaint, conveyed the same lands which are described in the complaint, then it is for the jury 5 — Stiff v. Cobb, 126 Ala. 381, 85 Held not open to objection that it Am. St. Rep. 38. ignored necessity of adverse hold- 6 — Stiff v. Cobb, 126 Ala. 381, 85 ing, as holding under claim of own- Am. St. Rep. 38. ership is adverse. 7— Kolb v. Jones, 62 S. C. 193. 1082 Foems of Instructions. [§ 619 to say whether the defendant S, entered into the possession of the said lands under the said deed, and whether the subsequent possession was adverse, to the exclusion of plaintiff's claim. 8 8 — Sudduth v. Sumeral, 61 S. C. ia the same land described in the 276, 85 Am. St. Eep. 883. The court complaint or some other papers is a held in this case that whether the question of fact for the jury, land described in a particular deed CHAPTER XLV. AFFIDAVITS. i 620. Effect as evidence. § 620. Effect as evidence. The court instructs the jury that the statement signed and sworn to by A on the — day of , 19 — , having been introduced in evidence by the plaintiff, may be considered in connection with the deposition of A as evidence of the facts stated under oath, against the plaintiff, with like effect as the deposition of A, and may also be considered as effecting the credibility of said A as a witness. 1 1 — Connecticut Muf. Life Ins. Co. 446, rev'g 46 C. C. A. 668, 107 Fed. v. Hillmon, 188 U. S. 208, 47 L. Ed. 834. (1083) CHAPTER XL VI. AGENCY. I. The Relation. A. CREATION AND EXISTENCE. § 621. Estoppel to deny agency. 622. — Illinois. 623. — Missouri. 624. — Texas. B. TERMINATION. 625. Eevocation by principal — Eight to revoke. 626. Same — Notice. 627. — Michigan. 628. — New York. II. Mutual Eights, Duties and Liabilities, a. execution of agency. § 629. Individual interest of agent — Profits from transactions. B. COMPENSATION. § 630. Eight to claim compensation from both parties — Employment requiring exercise of discretion. § 631. Actions — Damages. III. Eights and Liabilities as to Third Persons. A. IN GENERAL. § 632. Duty of third person to ascertain agent's authority. § 633. — Illinois. § 634. — Missouri. § 635. Implied and apparent authority of agent — In general. § 636. — Alabama. § 637. — Illinois. §638. —New York. § 639. Same — Effect of custom or usage. § 640. — New York. § 641. — Virginia. § 642. Same — Contracts of employment. (1084) Agency. 1085 i 643. Same — Borrowing money. § 644. Same — Collecting money. § 645. Same — Promissory notes. § 646. Same — Settlements. I 647. Same — Representations. § 648. — Massachusetts. § 649. — Pennsylvania. § 650. — Virginia. § 651. Undisclosed limitation of authority. i 652. Exceeding of authority by special agent. I 653. Personal liability of agent. B. UNDISCLOSED AGENCY. ! 654. Eights of undisclosed principal. § 655. Liability of undisclosed principal. 5 656. —New York. 5 657. — Virginia. } 658. Personal liability of agent. C. RATIFICATION. } 659. Knowledge of facts. ! 660. — Colorado. 5 661. — Florida. \ 662. — New York. i 663. Ratification in part. i 664. Implied ratification — Acceptance of benefits — In general. i 665. — Maryland. i 666. — New York. i 667. — Texas. i 668. Same — Same — Bringing suit. i 669. — Georgia. i 670. — Missouri. i 671. — Virginia. § 672. In general. D. NOTICE TO AGENT. B. ACTIONS. § 673. Evidence — Presumptions and burden of proof — Existence of relation. § 674. — Illinois. § 675. — New York. § 676. Same — Weight and sufficiency. § 677. Questions for jury. Cross-Eeferences. Agency of one spouse for other, see Husband and Wipe; agents of cor- porations, see Corporations ; embezzlement .by agent, see Embezzlement, §§ 2841-2843. 1086 Fokms or Instructions. [§ 621 I. The Eelation. A. CEEATION AND EXISTENCE. § 621. Estoppel to deny agency. §622. —Illinois. The court instructs the jury that if a person knowingly and voluntarily permits another to hold himself out to the world as his agent he will be held to adopt his acts and be bound as principal to the person who gives credit to the one acting as such agent. 1 The court instructs the jury that if you believe from the evidence that in the winter of 19 19 — the defendants knew that A was acting as their agent, and was buying stocks of goods in their name and operating the Mine in their name and to their benefit, and that they voluntarily permitted him to do so; and if you further believe from the evidence that A was so acting and made the contract alleged in plaintiff's declaration, then the defendants would be bound thereby, whether the said A was in fact their agent at the time or not. 2 §623. —Missouri. The court instructs the jury that direct proof of agency may be dispensed with where the person alleged to be the principal has by his actions or words influenced the conduct of others so that a wrong would be done to those influenced, if the alleged principal should be permitted to show a state of facts inconsistent with his actions and words. And the court instructs the jury that if they believe from the evidence that (plaintiff had bought flour regularly from as the agent of the defendant for several years, and that the contracts made with had always been promptly complied with by the defendant), and if the jury believe from the evidence that ( acted as agent of defendant for several years in making sales of the class of articles which plaintiff bought, and that his contracts were always carried out by the defendant), then the jury may find that 1 — Swannell v. Byers, 123 111. App. 2— Swannell v. Byers, 123 111. App. 545. 545. § 625] Agency. 1087 was the agent of the defendant and authorized to sell the goods described in the declaration to the plaintiff, although they may further find that — was also a broker selling on commissions. 3 §621 —Texas. The court instructs the jury that the matter of being the agent of defendants is a question of fact for them to determine from the testimony and in aid of their investigation they are instructed that an agent may be created by long acquiescence on the part of the principal, with knowledge of his acts as agent for said principal, as well as by express appointment; and that if by express agreement, it is so arranged between the parties that one shall be advertised as the agent, but that another shall actually do the business, and this third person* does transact the business, and becomes known as the agent of the principal by transacting their said business, then the said third person is their agent and the principal is estopped from denying it as to those who have acquired rights against said principal because of the acts of said agent. 4 B. TERMINATION. § 625. Revocation by principal — Right to revoke. The court instructs the jury that an agent cannot act in the business of his agency for himself and his principal at the same time and in the same transaction, and that if you believe from the evidence (that the plaintiff was employed by the defendant rail- road company to purchase wood and ties fdr the use of the corporation 'and that the plaintiff accepted a commission from A, who desired to sell wood to the defendant, and that plaintiff advised the directors to make the purchase of A, without dis- closing his interest and that under such advice defendant made the purchase at a higher price than it would otherwise have to 3 — Haubelt v. Rea & Page Mill 4 — Planters' Mut. Ins. Co. v. Ly- Co., 77 Mo. App. 672. ons, Lindenthal & Co., 38 Tex. 253. 1088 Foems or Instructions. [§ 625 do, then you are instructed that defendant was justified in dis- charging the plaintiff). 5 §626. Same— Notice. § 627. — Michigan. The court instructs the jury that the plaintiffs were employed by J to work for the defendant mining corporation at a time when J was the authorized agent of the mining company and that plaintiffs had a right to suppose the same condition of things continued to exist after the employment as existed at the time of the employment, unless they had notice to the contrary, or unless there was something in the circumstances surrounding the matter that was equivalent to notice to them, and' when the defendant mining corporation entered into a contract with J, by which the defendant ceased to operate its mine and J assumed charge of the mine as an independent contractor, then it was the duty of the defendant corporation to the plaintiffs, Who were in its employ at the time they made the contract with J, to convey particular notice to the plaintiffs of this change. The rule is that when one has constituted and accredited another as his agent to carry on his business, the authority of the agent to bind his principal continues, even after actual revocation of such authority, unless notice of the revocation is given, and, as to persons who have been accustomed to deal with such an agent, until notice of revocation is brought home to them. When notice is sought to be inferred as a fact from circumstances, it becomes a question for the jury. The court here thinks this is a question of fact and submits it to you, and the question is submitted to you as a matter of fact, whether this labor for which this suit is brought was done and performed under such circumstances as would operate as notice, or under such circumstances that it can be said that notice can be inferred on the part of these claimants of this change. If these parties had notice of this change, they cannot recover here, for it is undisputed that a change took place; that the authority of J was revoked, and he entered into an inde- 5 — Morrison v. Ogdensburg & L. C". R. Co., 52 Barb. (N. Y.) 173. § 629] Agency. 1089 pendent contract; and the question Here is, did these claimants have notice, or, under the circumstances surrounding them, can you infer from this evidence legitimately that they received notice ? And the question is submitted to you as a matter of fact, whether the defendant gave such notice as a prudent man should have given. 6 § 628. — New York. The court instructs the jury that one who has dealt with an agent of another has a right to assume, if not otherwise informed, that the authority of the agent continues and revocation by the principal of the agent's authority will not affect the person so dealing with the agent unless such person, has notice of the revocation, and if the jury believe from the evidence (that the plaintiff sold the [wood] described in the declaration to the defendant, and that under the terms of the contract the [wood] was to be delivered from time to time to the defendant, and that the plaintiff from time to time delivered the [wood] to A, the agent of the defendant, who was authorized to accept the [wood], but that before all the instalments of the [wood] had been delivered the agency of A was revoked by the defendant, but that plaintiff had no notice of the termination of the agency of A, but continued to deliver the final instalments of the [wood] to A as agent of defendant, then the jury are instructed that the acceptance of the [wood] by A on behalf of the defendant bound the defend- ant). 7 II. Mutual Rights, Duties and Liabilities, a. execution of agency. § 629. Individual interest of agent — Profits from transactions. The court instructs the jury, that a party cannot take upon himself diverse interests; and that when A, the defendant, received and accepted the power of attorney from the plaintiff B, he became, to all intents and purposes, the agent of B, and 6 — Tousignant v. Shafer Iron Co., 7 — McNeilly v. Continental Life 96 Mich. 8.7. Ins. Co., 66 N. Y. 23. Blashfield Vol. 1—69 1090 Forms of Instructions. [§ 629 that whatsoever transactions he had with C after the date of that instrument, in reference to the same transaction, he (A) was acting in that capacity, and as such, must account to his principal, B ; for whatever funds is left in his hands after C is paid, belongs to plaintiff. 8 The court instructs the jury that if an agent makes any profits in the ease of his agency, by any concealed management in either buying or selling, or other transaction on account of his principal, the profits will belong exclusively to the principal. 9 B. COMPENSATION. § 630. Right to claim compensation from both parties — Employ- ment requiring exercise of discretion. The court instructs the jury that an agent, in the ordinary acceptance of the term, cannot be the agent of two parties, having adverse interests, without the consent of both; because when he is entrusted with a discretion in buying and selling, he must exercise that discretion and judgment for the benefit of the person employing him. But where he is not invested with a discretion by one of the parties, but his instructions are fixed and determined by the one, he may then, without any violation of his duties, receive an employment from the other party having adverse interests, and negotiate the affair between the parties to a con- clusion; because, as to one of them, he cannot change the terms of the proposal, and, therefore, he may act for another, in accept- ing the terms so fixed and determined. In such a case, his engage- ment is in a manner two-fold, and in this capacity he may bring about the sale or exchange desired by both parties, and claim a compensation from each. 10 §631. Actions — Damages. The court instructs the jury that if the plaintiff is entitled to any damages for breach of contract, the measure of the damage is the value of the contract at the time of breach ; and in considering the value the jury must bear in mind that "the defendants were 8 — Cottom v. Holliday, 59 111. 176. 10 — Alexander v. Northwestern 9— Cottom v. Holliday, 59 111. 176. Christian University, 57 Ind. 466. §636] Agency. » 1091, not obliged to furnish any specified number of machines, or even to continue their manufacture. The plaintiff's rights under his contract were subject to the contingencies of business, depression of trade, which might tend to reduce the sales ; and in estimating the damages consequent upon the loss of the contract the jury must take into consideration what the plaintiff probably could earn in some other employment or occupation during the period during which the contract ran. 11 III. Rights and Liabilities as to Third Persons. A. IN GENERAL. § 632. Duty of third person to ascertain agent's authority. §633. —Illinois. The court instructs the jury that it is a rule of law that a person dealing with one known to be an agent, or claiming to be such, is bound at his peril to see that the agent has authority to bind his principal in such transaction, or that the agent is acting within the scope of his apparent authority. 12 §634. —Missouri. The court instructs the jury that one who deals with an agent is put upon inquiry as to the extent of the agent's authority, and assumes the risk of the agent having authority to bind his principal in the transaction in which they are engaged ; but if the principal has held out the agent as having authority to transact the business, or knowingly permitted the agent to so act, the agent Will be conclusively presumed to have the authority, whether it has actually been conferred upon him or not. 13 § 635. Implied and apparent authority of agent — In general. § 636. — Alabama. The court instructs the jury that in order to show the authority of A to bind defendants by particular acts or declarations, it is 11 — Rightmire v. Hirner, 188 Pa. 13 — Muth v. St. Louis Trust Co., St. 325, 43 Wkly. Notes Cas. 207. 94 Mo. App. 94, 4 Bank. Cas. Ann. 12— Meyers v. Johnson, 186 111. 416. App. 37. 1092 Forms of Instructions. [§ 636 not necessary to show that defendants specifically authorized said A to do those particular acts ; but such acts and declarations, if made in the line and scope of such general authority as may have been conferred on him by defendants, would be binding on them. 14 The court instructs the jury that if they believe from the evidence that A was superintendent of defendants' business, then defendants are bound by his acts and declarations done or made within the line and scope of his authority as such superin- tendent. 15 § 637. — Illinois. The court instructs the jury that though a man cannot be deprived of his property without his consent, and a principal is not bound by the unauthorized act of his agent, yet he is bound by every act on his own part, which gives his agent an apparent authority upon which other persons rely to do the act, the validity of which may be in question — and therefore the inquiry in such cases is, whether the agent's possession of the property, or of the documentary evidence of title thereto, was necessary for the ordinary business of life, or authorized by the custom of trade, . or whether the possession and other circumstances of the trans- action, were unusual or unnecessary, and of a nature to- mislead other persons as to the title to the property. 18 §638. —New York. The court instructs the jury that in many cases a principal is responsible for his agent's act, if it is within the general scope of the agent's employment, though it is in excess of the agent's authority, but that this is only true as between the principal and third persons when it is necessary to apply the maxim that where one of two innocent persons must suffer a loss because of fraud or the wrongful act of a third, that one must suffer the loss whose negligence made it possible for the loss to occur. 17 14 — Tutwiler v. McCarty, 121 Ala. 16— Burton v. Curyea, 40 111. 320, 356. 89 Am. Deo. 350. 15 — Tutwiler v. McCarty, 121 Ala. 17 — Clark y. Metropolitan Bank, *356. 10 N. Y. Super. Ct. (3 Duer) 241. §641] Agency. 1093 The court instructs the jury that apparent authority operates only by way of estoppel and can take the place of real authority only when the person claiming benefits from the exercise of such apparent authority has acted upon the appearance and if the jury believe from the evidence that the (defendant bank took drafts from plaintiff's clerk which had been indorsed by the clerk with- out authority and that the defendant bank had no knowledge of any of the circumstances alleged by the bank to show the apparent authority of plaintiff's clerk to indorse, but simply took the drafts upon the clerk's indorsement, then the defendant bank cannot allege that it was protected by the apparent authority of plaintiff's clerk to indorse the drafts alleged to have been con- verted by the bank). 18 § 639. Same — Effect of custom or usage. § 640. — New York. The court instructs the jury that if no express authority is given to a selling agent to warrant goods sold, it will be presumed that only such authority is conferred upon the selling agent as is in conformity to the customs and usages of the trade, in which the principal is engaged, and if you believe from the evidence (that the defendant gave his agent power to sell wool oils as alleged in the declaration, and that the agent did not have express power to warrant goods sold, and if you further believe from the evidence that it was not the usage or custom of the trade or dealers in wool oils to warrant such oils on a sale, then you will find that the defendant's agent had no implied authority to sell with warranty to the plaintiff.) 19 § 641. — Virginia,. The court instructs th« jury that if they believe from the evidence that the plaintiffs' fertilizers were first introduced into this community for sale , 19 — , and the spring of 19 — , and further believe that it was the custom or usage of the farmers of this section not to buy any fertilizer when first introduced, 18— People v. Bank of North 19— Wait v. Borne, 7 N. Y. St. America, 75 N. Y. 457. 113, 26 Wkly. Dig. 262. 1094 FOEMS OF IlSTSTETJCTIONS. [§ 641 upon the analysis thereof, but to require a warranty that the said fertilizer be as good as any other fertilizer on the market, dollar for dollar, as crop-producing, and if they further believe that A warranted the fertilizers which he sold to the defendant, as alleged in his plea, then they are instructed that the plaintiffs are bound by such warranty, although they may believe he was restricted from making such warranty by any contract entered into between the plaintiffs and said A, unless they further find from the evidence that the said written restriction was known to the said B at the time he made the said purchases. 20 § 642. Same — Contracts of employment. The court instructs the jury that if the defendant wrote to his son, A, to sell the property and use his discretion as to price, and that no further or other authority was given in reference to the sale or employment of brokers, then A had no authority to employ the plaintiffs and bind the defendant to pay their com- missions. 21 § 643. Same — Borrowing money. The court instructs the jury that it is not necessary for plaintiff to show any express authority in C to borrow money to render defendants liable. If money was borrowed by C in the general course and conduct of the business of defendants, and defendants knew this fact and acquiesced in it, and the note sued on was given for money borrowed of plaintiff, by C, for the business of defendants, and the money was in good faith used in such busi- ness, and plaintiff had no knowledge of any want of express authority on C 's part to borrow money, then you will find for the plaintiff. 22 § 644. Same— Collecting money. The court instructs the jury that if the jury find from the evidence that was a canvassing agent, obtaining sub- scriptions for the plaintiff for books published by him and sold 20 — Eeese v. Bates, 94 Va. 321. 22 — Collins v. Cooper, 65 Tex. 460. 21— Doggett v. Greene, 254 111. 134. § 646] Agency. 1095 by subscription, and that said was restricted by the terms of his employment from collecting for any books or parts of books, except such as were delivered by him, — and they further find that said canvassing agent never had possession of the parts and works for which this suit is brought, and did not deliver the same to the defendant, — then the court declares the law to be that the employment of as canvassing agent gave him no authority to collect the money for which this suit is brought, and it devolves upon the defendant to show that he had such authority. 23 § 645. Same — Promissory notes. The court instructs the jury that even if they should believe from the evidence in this case that defendant A and defendant B ' had money in bank standing to the credit of one of them, and that each had authority from the other to check in the other's name on such money, it does not follow from this fact alone that B gave to A authority to sign B's name to promissory notes, and the court instructs the jury that should they believe from the evidence that B had signed several notes for A as security, B signing his own name to such notes, this fact alone does not show authority in A to sign B 's name to other notes. 24 § 646. Same — Settlements. The court instructs the jury that if you should find from the evidence that, at the time said implements were invoiced by A, if they were so invoiced, that the said invoice was made for the purpose of a final settlement, and that a settlement was had, and you further find that A was acting for said company, with the express authority from said company to settle said note, and did in fact effect a settlement with B, then you will find for defend- ants B and C; but should you find that A only had authority to collect cash on said note and there was no settlement, then you will find for the plaintiff. 25 23 — Chambers v. Short, 79 Mo. 25 — Lemond v. Smith, — Tex. 204. Civ. App. — , 149 S. W. 751. 24— Hefner v. Palmer, 67 111. 161. 1096 Forms of Instructions. [§ 647 § 647. Same — Representations. § 648. — Massachusetts. ' The court instructs the jury that if defendant employed and au- thorized R to sell the and in pursuance of that authority E sold the and induced the plaintiff to buy, and made false and fraudulent representations about the , upon which the plaintiff relied and which induced him to purchase, then the defendant would be responsible for that fraud, notwithstand- ing there were no instructions given to R by the defendant which authorized him to make fraudulent representations, and notwith- standing the defendant did not know that he practiced those fraudulent representations. Employing him as agent, or as his agent to do that thing, he became responsible for the methods which hi,s agent adopted in doing that thing. * * * If the representations were false in fact, and R had no knowledge personally of the truth of these representations, but derived his information from others upon those facts, he, or the person for whom he was acting as agent in the same would be liable to an action for deceit. 26 § 649. — Pennsylvania. The court instructs the jury that after defendant had put the matter of selling her land in Mr. S 's hands, he had a conversation with J, the brother of defendant, in which J suggested the propriety of employing E, who was a real estate broker, to effect the sale. Mr. S assented readily to J's idea and gave him a more general authority, because he said, "Employ two or three brokers, if necessary," and from that time forth he dismissed the same from his mind or at least took no further steps in regard to it, as defendant had, as she declares, dismissed it from her mind. J then proceeded in the execution of this power to call upon E, and to acquaint him with the situation of the property, giving him a circular which he had prepared, which contained a minute account of the property, among other things stating in explicit terms that the ground contained seven acres. r 26 — Haskell v. Starbird, 152 Mass. 117, 23 Am. St. Eep. 809. § 649] Agency. 1097 One of the questions in this case may be as to J's authority to do this much. It is not denied by the defendants, indeed, it is a part of this case or at least of their testimony, that J was authorized to take whatever steps were necessary or to employ a % % real estate agent to effect the sale; but it does not necessarily follow that an authority to select a real estate agent to bring about a sale will authorize the agent to take measures to effect such sale. At the same time when a man is employed to do a thing, it is generally implied or may be so, that he is to do what is requisite to render his employment effectual ; and without stating any proposition of law (it is a question for the jury to consider whether, if a man is told to select a real estate agent and employ him to sell a piece of property, that does or does not carry with it the duty to give a description of the property to the person so employed), to some extent it would seem to be so, because he must necessarily say where the property is situated, as, for instance, whether it is in the town or in the country. It would not do to call upon a broker and say, "I want you to sell a house," without saying where the house was. Some description therefore must be given and the doubt is as to the extent. I suppose it is a matter of inference or for consideration by the jury, whether a person who is authorized to select a broker and employs him to sell a house, may not state the number of stories, whether it is of brick or of stone, and give him some general idea, because otherwise the broker would be comparatively uninformed of what might be material for him to know in negotiating the sale. I do not say that this would be necessary, because after the broker had been told where the buildings were he might look for himself, but on the other hand I certainly do not mean to tell the jury that a right to give some description of the property might not exist. J certainly interpreted his authority in the largest sense. As I have already said, he gave the broker a minute description of the house containing this more or less material fact, that the ground contained seven acres, and E, putting his interpretation upon the information he had received from G, as coming from a 1098 Forms of Instructions. [§ 649 person duly authenticated by the family, proceeded to. advertise in the newspapers as a property of seven acres. Under this state of facts, the jury are instructed that it is for them to decide whether S, as defendant 's agent so far empowered J, to act ior defendant in the sale of the premises in question as to render defendant responsible for the representations of J, to the real estate broker E, and subsequent repetition of such statement by E, to the plaintiff, that the property in question contained seven acres 27 §650. —Virginia. The court instructs the jury that if they believe from the evidence that the lot described in the declaration was placed by plaintiff in the hands of B as his agent, for sale, and that he sold the same to W, and that W sold it to the defendant without disclosing to defendant he was the owner, but had defendant to execute the note, the foundation of this suit, to plaintiff; and if they further believe that W made representations to the defend- ant of material facts as inducements to purchase the said lot, and they believe those representations were in fact unteue, and said representations were reasonably relied upon by defendant to his prejudice, then the jury is authorized to allow the defendant such set-off against the plaintiff's demand as they deem just and proper. 28 § 651. Undisclosed limitation of authority. The court instructs the jury that as a general rule private instructions of the principal limiting the authority of his agent will not affect one who deals with the agent in ignorance of the special instructions and if the jury believe from the evidence that C borrowed money from plaintiff, claiming to act as agent of defendants, and if such act of borrowing was within the usual and ordinary scope or purview of the business in which C was employed, and which he was authorized by defendants to conduct and carry on, and plaintiff loaned the money to C for the benefit of defendants, then defendants would be bound for such money, 27— Griswold v. Gebbie, 126 Pa. 28— Tyson v. Williamson, 96 Va. St. 353, 12 Am. St. Rep. 878. 636. § 653] Agency. - 1099 even if, by the private contract between defendants and C, he was not authorized to borrow money, unless plaintiff knew he was not so authorized when he loaned the money. 29 § 652. Exceeding of authority by special agent. The court instructs the jury that even if they believe from the evidence that S did purchase the property for himself and L, yet if the jury believe, from the evidence, that L did not authorize him to do so, L is not bound by such purchase. That if the jury find that in the contract and arrangement, which resulted in the giving of the note in suit, the business between L and was done by S, and that said S had no authority, as a general agent, from said L, beyond that resulting from their relation as general partners in the manufacture of , but only an authority to do that particular business, he (S) would be, as far as this case is concerned, a special agent of L in that business, and so far as the jury find that he (S), in doing it, exceeded the authority and instructions given to him by L, L would not be bound. 30 § 653. Personal liability of agent. The court instructs the jury that if they believe from the evidence that the defendant as alleged in the declaration, claimed to be the agent of A and to have authority to make the contract sued on on behalf of A and that the defendant so acting on behalf of A ordered the work, for the value 1 * of which this suit is brought, and if the jury believe from the evidence that the defendant was directed by A to order the work on the credit of and not on the credit of A, then the jury will find the defendant liable for the work so ordered. 31 The court instructs the jury that the liability of one who with- out authority assumes to act as agent to respond as a principal to the party dealing with him, is founded on his warranty as to his agency and cannot be extended to a case where the limits of his agency or the fact that he is not an agent is known to the 29— Collins v. Cooper, 65 Tex. 460. 31— New York Bank Note Co. v. 30— Lytle v. Boyer, 33 Ohio St. McKeige, 31 App. Div. (N. Y.) 188. 506. 1100 Foems op Instbtjctions. [§ 653 party with whom he deals, nor to a case where the agent is induced to enter into a contract on the suggestion of the party with whom he deals that the alleged principal approves the transaction. 32 B. UNDISCLOSED AGENCY. § 654. Rights of undisclosed principal. The court instructs the jury that if they believe from the evidence that the contract in suit to furnish materials and render services for defendant was made by A and that A was duly authorized by the plaintiff to make the contract, though A did not disclose the fact of his agency for plaintiff, then plaintiff may enforce such contract against the defendant on the performance of the contract subject to any defenses available against A. 33 § 655. Liability of undisclosed principal. § 656. — New York. The court instructs the jury that if they believe from the evidence that A bought the goods described in the declaration from the plaintiff, and that A used the style of agent in the transaction and that A was in fact acting as agent on behalf of the defendant, though A did not disclose upon whose behalf he was acting at the time of making the contract of purchase, and if the jury believe from the evidence that credit was not given by plaintiff exclusively to A, then plaintiff may elect to hold defend- ant liable for the goods. 34 The court instructs the jury that the liability of an undisclosed principal depends on the agent having acted in the business intrusted to him according to his power and that if the jury believe from the evidence that (the defendant furnished A money with which to make a purchase and that A bought the goods described in the declaration as alleged therein from the plaintiff 32 — Aspinwall v. Torrance, 1 34 — Kayton v. Barnett, 116 N. T. Lans. (N. Y.) 381, aff'd 57 N. Y. 625; Meeker v. Claghorn, 44 N. Y. 331. 349; Fish v. Wood, 4 E. D. Smith 33— Van Lien v. Byrnes, 1 Hilt. (N. Y.) 327. (N. Y.) 133. § 658] Agency. 1101 on credit and that plaintiff had no knowledge that A was pur- chasing for a principal, then the plaintiff eannot recover from the defendant for the goods so sold on credit to A) . 35 § 657. — Virginia. The court instructs the jury that if they believe from the evi- dence that, before and at the time of closing the said transaction, A was in the employ of the defendant, to be paid, and that he was thereafter paid, a consideration by the defendant for his services in relation to the said transaction, and that such relation- ship existing between the said A and the said defendant was unknown to the plaintiff, and not ascertained by him until long after consummating the said deal, that then, any representations made by the said A to the said plaintiff, prior to and at the time of the closing of the said transaction, in relation to the said • property, were made as the agent and in behalf of the said defendant, and that the defendant is bound by the same, to the same extent as if made by himself. 36 § 658. Personal liability of agent. The court instructs the jury that it is a rule of law that an agent who enters into a contract in his own name, without dis- closing the identity of his principal, renders himself personally liable, even though the third person knows that he is acting as an agent, unless it affirmatively appears that it was the mutual intention of the parties to the agreement that the agent should not be bound. 37 The court instructs the jury that in order to avoid personal liability, it was the duty of A to disclose to plaintiff that defend- ant A was acting in a representative capacity, and also to disclose to plaintiff the identity qf his principal. But, if plaintiff knew the identity of the principal, A then did not owe any duty of dis- closing the identity of his principal. 38 35— Laing v. Butler, 108 N. Y. 37— Frank v. Woodcock, 72 Ore. 637; s. c. 37 Hun (N. Y.) 144. 446, 143 Pac. 1105. 36 — Cerriglio v. Pettit, 113 Va. 38— Frank v. Woodcock, 72 Ore. 533. 446, 143 Pac. 1105. 1102 Forms of Instructions. [§ 659 c. ratification. 39 § 659. Knowledge of facts. §660. —Colorado. The court instructs the jury that where the principal knows that his name has been signed to a certain bond by one assuming to act as his agent, though the principal does not know the exact terms of the bond or the extent of his liability thereon, he can not escape the consequences of his silence by purposely closing his eyes to the means of information within his control regarding tbe details. 40 §661. —Florida. The court instructs the jury that if they believe from the evi- dence that the plaintiff sent the bill of lading described in the declaration to the defendant bank to be delivered to A on the payment by A of a sight draft and the acceptance of a time draft and that defendant bank surrendered the bill of lading solely on the payment of the sight draft and because A claimed that the goods which he had purchased from plaintiff were not as they were warranted, with the understanding that the amount of the balance due to the plaintiff was to be not the amount evidenced by the time draft but such amount as might be determined between the parties to the sale in the future, and if the jury further believe from the evidence that plaintiff accepted the pro- ceeds of the sight draft from defendant bank with knowledge that A had refused to accept the time draft, and that the bill of lading had been delivered, but if the jury further believe from the evidence that plaintiff knew nothing about the agreement that the balance due from A should be ascertained by future adjust- ment, then the jury will not be warranted in inferring a ratifica- tion by the plaintiff of the act of defendant bank in surrendering the bill of lading without securing the acceptance of the time draft. 41 39 — Tort of child, see Parent and 41 — Oxford Lake Line v. First Child, § 5653. Nat. Bank, 40 Pla. 349. 40— Lynch v. Smyth, 25 Colo. 103, 54 Pac. 634. § 665] Agency. 1103 §662. —New York. The court instructs the jury that the mere fact that the prin- cipal was not informed of an immaterial fact at the time of the alleged ratification, will not defeat it and that if you believe from the evidence (that the plaintiff empowered A, as his agent, to execute a lease of the premises described in the declaration, and that after the execution of the lease plaintiff accepted rent from the lessee and visited the premises and witnessed certain improve- ments made thereon by the lessee, then you are instructed that the plaintiff cannot allege a departure from the power merely because at the time of the making of the lease, A did not disclose to the plaintiff that the lease was given upon the condition of securing the consent of the plaintiff) , 42 § 663. Ratification in part. The court instructs the jury that a principal cannot affirm an act of his agent in part and disaffirm as to the residue, and the defendant herein is not to be allowed to avail himself of the benefits of M's acts wherein they inure to his benefit and to ignore and disaffirm the acts of said M when they may operate to his prejudice provided M has acted within the scope of such agency. 43 § 664. Implied ratification — Acceptance of benefits — In general. §665. —Maryland. The court instructs the jury that if the jury believe from the evidence that plaintiff, authorized C, his agent to rent the house in question to defendant, for but one year, but that said agent rented it for two years, as alleged by the defendant's witnesses and that the defendant held the same for two years and that during the second year of the said tenancy plaintiff treated the defendant as his tenant by receiving the rent originally agreed 42 — Clark v. Hyatt, 55 N. Y. Su- Lyons, Lindenthal & Co., 38 Tex. per. Ct. (23 Jones & 8.) 98. 253. 43 — Planters' Mut. Ins. Co. v. 1104 Forms op Instructions. [§ 665 upon, then the jury may infer that the landlord ratified the eon- tract for the two years lease and may find for the defendant. 44 §666. —New York. The court instructs the jury that if they believe from the evidence that A assumed to act on behalf of the defendant and induced plaintiff to pay to the defendant moneys as alleged in the declaration for the purchase of an interest in the land described in the declaration, and that A made the false represen- tations alleged in the declaration to induce the payment by plaintiff, and that plaintiff was induced by such false representa- tions to pay over money and if the jury believe from the evidence that defendant received the money so procured from the plaintiff and defendant had knowledge of the representations made by A, then the jury are instructed that the defendant ratified the sale by A and the false representations made by him in regard thereto. 45 The court instructs the jury that if they believe from the evi- dence that (it was the duty of A to attend to the payment of rents on behalf of the defendant, and that A in the absence of funds, borrowed the amount necessary from the plaintiff as alleged in the declaration, to pay the rents on behalf of the defendant, and if the jury believe from the evidence that the money so borrowed was disbursed by A in discharge of his duty for the benefit of the defendant and in the payment of rents and that the benefit of the money so borrowed has ever since been retained by the defendant, then defendant is liable to the plaintiff for the money so borrowed) . 46 § 667. — Texas. The court instructs the jury that if borrowed money from plaintiff for the benefit of defendants, without authority from defendants, either express or implied, and if defendants, know- ing that such money had been borrowed, ratified and acquiesced in the act of C, or knowing such money to be borrowed, accepted 44 — Reynolds v. Davison, 34 Md. 46 — Hearne v. Keene, 18 N. Y. 662. Super. Ct. (5 Bosw.) 579. 45— Leslie v. Wylie, 47 N. Y. 648. §671] Agency. 1105 the benefit of it, then they would be held bound by the act of C, as much as if they had authorized it before it was done, 47 § 668. Same — Same — Bringing: suit. §669. —Georgia. The court instructs the jury that in order for the act of A to be binding on the B Company as- their agent, the act must have been by authority of the B Company, or must have afterwards been ratified by the company with a full knowledge of the facts. A suit instituted and continued after a full knowledge of all the facts would amount to a ratification with a full knowledge of the acts of the agent in the transaction, the mutual mistake on the part of both parties, or frauds on the part of A, inducing an honest mistake on the part of C, such a mistake or fraud as under the law would authorize the enforcement of the agreement which resulted in the execution of the note. 48 §670. —Missouri. The court instructs the jury in bringing the action upon these notes, the Bank and this plaintiff adopt and ratify all the acts of its agents or officers by which the notes in question came into the bank; that is, when this plaintiff seeks to recover upon these notes from this defendant, it is bound by what the evidence in the case shows to be the facts connected with the transaction. 49 § 671. — Virginia. The court instructs the jury that if they believe from the evidence that the lot described in the declaration was placed by the plaintiff in the hands of B, as a real estate agent, to sell the same, and that said B authorized W to sell the same, and paid him one half of the commission for selling the lot; and if they furthermore believe from the evidence that the sale was in fact thus made, and that the plaintiff, is now seeking to enforce the said sale, then they are instructed that the plaintiff has ratified the acts of said "W, and is as responsible therefor, as well as for 47— Collins v. Cooper, 65 Tex. 460. 49— Chicago Title & Trust Co. v. 48 — Dolvin v. American Harrow Brady, 165 Mo. 197. Co., 131 Ga. 300. Blashfield Vol. 1—70 1106 Forms op Instructions. [§ 671 such representations as the jury believe were made by said "W, as he would have been if they had been done and made by himself. 50 The court instructs the jury that if they belieye from the evidence" that the lot described in the declaration was placed by the plaintiff in the hands of B, as a teal estate agent, to sell the same, and that said B authorized W to sell the same, and paid him one half of the commission for selling the lot; and if they furthermore believe from the evidence that the sale was in fact thus made, and that W, the plaintiff, is now seeking to enforce the said sale, then they are instructed that the plaintiff has ratified the acts of said W, and is as responsible therefor, as well as for such representations as the jury believe were made by said W, as he would have been if they had been done and made by himself. 51 D. NOTICE TO AGENT. § 672. In general. The court instructs the jury that notice to an agent is in general notice to the principal, if the agent acquires knowledge of the fact said to be brought home to the principal while acting for the principal in the course of the very transaction which was the subject of the suit. 52 E. ACTIONS. § 673. Evidence — Presumptions and burden of proof — Existence of relation. § 674. — Illinois. The court instructs the jury as a matter of law that before a principal can be bound by the acts of his agent, it must be shown by the party asserting such agency that the principal authorized such agent to act for him and in his behalf, and that such agent carried out the business of his principal and within the scope of 50 — Tyson v. Williamson, 96 Va. 52 — Henry v. Allen, 151 N. Y. 1, 36 636. L. R. A. 658; Ingalls v. Morgan, 10 51— Tyson v. Williamson, 96 Va. N. Y. 178; Bank of United States v. 636. Davis, 2 Hill (N. Y.) 451. § 676] Agency. 1107 his authority as such agent ; otherwise the principal is not bound by the acts of the agent. 53 The court instructs the jury as a matter of law that before A can be bound by the acts of his son, B, it must be shown by the defendant, by competent evidence, that A authorized B to act for him and in his behalf in executing the special agreement relied upon by the defendant. 54 § 675. — New York. The court instructs the jury that the presumption that a fact once shown to have existed, continues, applies to the relation of principal and agent. 55 § 676. Same — Weight and sufficiency. The court instructs the jury that if you find that C was an agent of defendants, but that express authority was not given to him, as such agent, to borrow money for defendants, then you may look to the contract between them as it may be shown, by the evidence, the nature and character of the business in which C was employed to act as agent, and all the transactions between them, and ascertain whether or not it is to be fairly implied as contemplated by them or embraced in the scope of his employ- ment as agreed on between them, that he should have such power to borrow money to be used in such business. 56 The court instructs the jury that the question as to whether or not one is agent for another, with power to bind his principal where the interest of outside parties is involved, is one to be determined, not alone by the actual contract between the parties as to whom it is sought to establish the relation of principal and agent, but that is to be considered together with all the facts and circumstances which in addition bear thereon. The question of agency in this ease is to be determined by the jury from all the evidence relating to the transaction of the business and all the facts and circumstances connected with the same, both as between -Fassin v. Hubbard, 55 N. Y. -Collins v. Cooper, 65 Tex. 460. 53 — Meyers v. Johnson, 186 HI. 55- App. 37. 465. 54-^-Meyers v. Johnson, 186 111. 56- App. 37. 1108 Foems of Instructions. [§ 676 A & Co. and B, and between said A & Co. and said B and parties dealing with them. 57 The court instructs the 1 jury that as to whether or not A was the agent of B as the plaintiff claims, and acting for him, that is a question of fact which you are to determine from all the facts ■ and circumstances in the case. The fact that A says that he was not the agent is not binding upon C. It is for you to say from the testimony whether A was in fact acting for B, either as agent or employee, and in passing upon this question it is your duty to take into consideration the instructions that B gave to A relative to the horse delivered at the time, if you find that he gave any instructions along that line. On the question of agency, you have a right to consider whether there is any testimony to show ratifica- tion — that is, the acceptance or acquiescence by B in what A did ; that is, Did B consent "to the action in his behalf by A? You have also a right in passing upon this question to consider whether there was an original authority; that is, whether B brought A there for the purpose of assisting him in taking charge of the horse in the yard, as has been testified to by the plaintiff. You have also the right to consider whether B held out to the world, and to D, that A was his agent, to do the things A did; that is, to take charge of and break the horse or take charge of the horse for B from the time the rope was given him in the yard there, as well as all other facts'and circumstances in the case. 58 § 677. Questions for jury. The court instructs the jury that this action is brought by plaintiff against defendant to enforce the payment of two bonds and a mortgage given to secure the bonds executed by defendant and the defendant sets up the defense of payment. Defendant had entered into contracts with the city of for the build- ing of and under this contract with the city of he was to be paid for his work when the assessments for the work should have been collected by the city, and defendant not having a sufficient amount of money to carry on his undertaking with 57 — Mclntyre v. Smyth, 108 Va. 58 — Kendriek v. Hochradel, 167 736. Mich. 179. § 677] Agency. 1109 the city applied to one S to borrow money for him and a bond and mortgage were executed by the defendant to L, to be turned over to whoever should furnish the money. " S induced plaintiff to furnish the money required by the defendant and the arrange- ment between the defendant and S was that the money furnished by the plaintiff should be repaid when S should collect the assess- ments, and it seems that the plaintiff did not ask the delivery of the bond and mortgage which had already been drawn up and executed in favor of L, and did not insist on anything more than a general statement that the money furnished by him should be secured by mortgage. The money which was collected by S on the assessments was not paid to plaintiff and for the purpose of this case the jury will regard such money as having been mis- appropriated. It was misappropriated at a time when S, was responsible for it. There is some evidence that plaintiff knew of the arrangement between the defendant and S by which the moneys to be collected on assessments should be applied in pay- ment of the loan made by the plaintiff. Now the court instructs the jury that it is for them to determine whether S misappro- priated the moneys collected upon the assessment as the agent of defendant. If S misappropriated such moneys as agent of defend- ant, then your verdict should be in favor of plaintiff* but if the jury find from the evidence that S misappropriated the moneys collected upon assessments as the agent of plaintiff, then your verdict must be for the defendant. 59 59— Brecht v. McParland, 187 Pa. St. 620. CHAPTEE XLVII. AGRICULTURE. § 678. Canada thistles — Compliance with statute by railroad. § 678. Canada thistles — Compliance with statute by railroad. The court instructs the jury, as a matter of law, that the fact that a stray Canada thistle, growing here and there on the right of way or other lands of a railway company, controlling or operating a railroad in the state of Illinois, has been overlooked and permitted to mature its seed, is not of itself a violation of the^ provision of the statute of the state of Illinois, which reads : "If any company, association or person, owning, controlling or operating a railroad, shall refuse or neglect to dig up and destroy, or take other certain means of exterminating Canada thistles and other noxious weeds that may at any time be growing upon the right of way or other lands of such roads, or appertaining thereto, they shall be fined for each offense not less than fifty (50) nor more than two hundred (200) dollars, the fine to be paid as in the preceding section," when the said railroad company has done all that could be reasonably expected of it for the destruction of the thistles. And if you believe from the evidence in this case that the defendant has in good faith made a bona fide attempt to comply with said law, and has in good faith done all that could reasonably be expected of it for the destruction of said Canada thistles, even though you may believe that a few stray thistles were found growing on the right of way of the defendant com- pany of other lands belonging to the defendant, still, in that case, your verdict should be for the defendant. 1 1— Chicago, M. & St. P. E. Co. v. People, 132 111. App. 531. (1110) CHAPTER XLVIII. J ALTERATION OF INSTRUMENTS. § 679. Materiality — Consideration. § 680. Same— Date. § 681. Same — Interest. § 682. — Indiana. § 683. — New York. § 684. Same — Medium of payment. § 685. Same — Signatures. ■ § 686. Same — Indorsements. § 687. Intent. § 688. Consent of parties. § 689. Eatification. § 690. — Alabama. § 691. — Illinois. § 692. Effect on rights of parties. § 693. — Illinois. § 694. — Kansas. § 695. — Missouri. § 696. Spoliation. § 697. Evidence — Burden of proof. Cross-Beferences. See Forgery; bona fide holder of altered bill or note, see Bills and Notes; recovery of excessive amount paid on raised draft, see Banks and Banking; alteration of contract of subscription to corporate stock, see Corporations. • § 679. Materiality — Consideration. The court instructs the jury that a change in the consideration of an instrument is a material alteration and if you believe from the evidence that (here state facts of change as to consideration of instruments, as where a woman executes a bond and mortgage and intrusts them to her husband for delivery,' and he before de- livery alters the bond by raising the amount, and the mortgage by raising the consideration without her consent or subsequent (1111) 1112 Foems of Instbuctions. [§ 679 ratification) there is a material alteration, and your verdict will be for the defendant. 1 §680. Same— Date. The court instructs the jury that if you find from the evidence that the plaintiff (state the particular in which the alteration consisted, as changed the date of the note from Dec. 1 to Jan. 1) and if you find from the evidence that the defendant did not con- sent to the making of such alteration then your verdict will be for the defendant. 2 §681. Same — Interest. §682. —Indiana. The court instructs the jury that it is claimed by B, defendant, that, after he signed a note similar in all respects to the one sued on, excepting that the written words, "with interest at ten per cent." were not then in the note, and since he signed the note, without his knowledge or consent, the said printed words were stricken out, and the said written words inserted. If such an alteration of the note was made by any holder of the note, or made with the knowledge of any holder of the note, without the knowl- edge of B, it would be a material alteration, and would release him from all liability on the note, and if the defendant B proves this, by a fair preponderance of the evidence, the verdict must be in his favor; and it would make no difference whether A, the plaintiff, was or was not the owner of the note at the time of the alteration, if he made the alteration after B signed it. 3 § 683. — New York. The court instructs the jury that an alteration as to the amount of a note is a material alteration and that if you believe from the evidence (here state the facts, as the addition of the words "with interest" or the insertion of the words "with inter- l_Cheek v. Nail, 112 N. C. 370. 3— Brooks v. Allen, 62 Ind. 405. 2 — First Nat. Bank v. Payne, 19 Ky. L. Kep. 839. § 687] Alteration of Instruments. 1113 est after six months" in a note without maker's consent) then your verdict will be for the defendant. 4 § 684. Same — Medium of payment. The court instructs the jury that an alteration as to the medium of payment is a material alteration and that if you believe from the evidence (here state facts, as striking out the words "in gold or its equivalent" from a promissory note, in the clause for the payment of interest), and you believe from the evidence that the alteration was made without consent of the surety thereon, your verdict will be for defendant. 5 §685. Same — Signatures. The court instructs the jury that an alteration to be material so as to' invalidate the instrument must change the effect of the instrument and though you may believe from the evidence that the alteration consisted in adding words of description to the name of the payee, that fact will not invalidate the instrument as the effect of the instrument is not thereby changed. 6 §686. Same — Indorsements. The court instructs the jury that if you believe from the evi- dence that the erasure in this case was of an unauthorized indorse- ment on the note, and you further believe from the evidence that the maker of the note had knowledge of the lack of authority, you are instructed that such alteration would not be a material alteration invalidating the note. 7 §687. Intent. The court instructs the jury that if you find from the evidence that the alteration (here insert facts, as the writing of the word "paid" where there was in fact no payment) was a mistake, and you further believe from the evidence that the alteration was made 4 — Schwarz v. • Oppold, 74 N. Y. 6 — Casto v. Evinger, 17 Ind. App. 304; Meyer v. Huneke, 55 N. Y. 412; 298. Kennedy v. Crandall, 3 Lans. (N. 7 — Waldorf v. Simpson, 15 App. Y.) 1. Div. (N. Y.) 297. 5 — Church v. Howard, 17 Hun (N. Y.j 5. 1114 Forms op Instructions. [§ 687 without fraud the maker will not be discharged from his liabil- ity. 8 §688. Consent of parties. The court instructs the jury that if they believe, from the evi- dence, that the -seal was appended to the note in question after its execution, and before the commencement of this suit, by and with the consent of the parties thereunto, then the plaintiff is not entitled to recover, and ph.e jury should find for the defendant. 9 §689. Ratification. § 690. — Alabama. The court instructs the jury that if you believe from the evi- dence that the obligors (in a bond), with knowledge that it had been altered by the insertion of a place of payment, offered to pay a part thereof and asked for time in which to pay the balance, such offer and request will constitute a ratification of an assent to the alteration. 10 The court instructs the jury that if you believe from all the evidence that there was a memorandum attached to the note sued on alleged by defendant, but that after defendant became fully informed and advised as to the fact (if it be a fact) that the memorandum was detached by A [payee], he made payments and had them indorsed on the back of the note or indorsed them there himself, without objection or condition, then you may rea- sonably infer and find from these facts that defendant has waived his objection to said alteration and has ratified the note in its present condition. 11 The court instructs the jury that if you believe from all the evidence in this case, that there was a note or memorandum at- tached to the note at the bottom as alleged by the defendant, and that such note or memorandum was detached or cut off by A [payee] before any payment was made and indorsed thereon, and 8 — Louremore v. Berry, 19 Ala. 10 — Dickson v. Bamberger, 107 130; 54 Am. Dee. 188; Kussel v. Ala. 293. Longmoor, 29 Neb. 209. 11— Payne v. Long, 121 Ala. 385. 9 — Schwarz v. Herrenkind, 26 111. 208. § 694] Altbeation of Instbuments. 1115 that all the payments now indorsed on the note were made or placed on the back of the note after the alleged alteration with full knowledge of the alteration on the note in the present con- dition, then you may infer from all these facts that B [maker] ratified said note and is bound by it. 12 §691. —Illinois. The court instructs the jury that if you believe from the evi- dence that one of the makers of the (here describe instrument, as note) distinctly and unconditionally promised to pay it, there is such a ratification of the alteration that it then becomes imma- terial whether the alteration was a material alteration, as by such act he adopts the (instrument, as note) as his own and is bound to pay it. 13 § 692. Effect on rights of parties. § 693. — Illinois. The court instructs the jury that if they' believe, from the evi- dence, that the seal to the note in question was attached thereto at the time of the commencement of this case and the execution of the same, then the jury should find for the defendant. 14 The court instructs the jury that if they believe, from the evi- dence, that the seal was attached to the note* in question before the commencement of this case by the plaintiff, without the knowl- edge or consent of the defendant, then the defendant is entitled to a verdict, and the jury should find accordingly. 15 §694. —Kansas. The court instructs the jury that if you find from the evidence that (here state the facts, as that the time when the interest should commence to run is changed "from maturity" to "from date") then your verdict will be for the defendant. 16 12 — Payne v. Long, 121 Ala. 385. 15 — Sehwarz v. Herrenkind, 26 111. 13 — Goodspeed v. Cutler, 75 111. 208. 534. See Seott v. Bibo & Co., 48 16 — Sheeley v. Simpson, 5 Kan. 111. App. 657; and Wurster v. App. 465, 46 Pae. 994. Reitzinger, 5 111. App. 112. 14 — Sehwarz v. Herrenkind, 26 111. 208. 1116 Forms of Instructions. [§ 695 § 695. — Missouri. ■ The court instructs the jury that if they believe from the evi- dence in the cause, that, the promissory note, dated day of ■ , 19 — , read and shown to the jury in this case, was made by the defendant, M, and indorsed by the defendant A, and de- livered by him to his co-defendant, M, for the purpose of enabling M, the maker, to raise money thereon for his own use ; and if they shall further believe from the evidence that, after the defendant A had so indorsed and delivered said note to said M, the words and figures "with interest at ten per cent, per annum after ma- turity, ' ' now appearing in said note, were written therein without the knowledge, consent or authority of the defendant A, by said M, or by any ag"ent or clerk of his, whether done in the presence of any officer or agent of plaintiff, or not, and whether with or without the knowledge of the plaintiff, — the verdict should be for the defendant A on the count. 17 §696. Spoliation. The court instructs the jury that if you believe from the evi- dence that A's attorneys employed by and who brought the suit and took judgment on the note, altered the note, without the knowledge or conse'ht of A, and without being authorized by him to make the alteration, such alteration would not relieve the de- fendants from liability on the note for the amount included therein when the note was executed. 18 The court instructs the jury that if you believe from the evi- dence that the defendants executed the note offered in evidence, with an attorney fee of in the warrant of attorney, and that if some person, not the plaintiff, changed the amount of the attorney's fee in the warrant to without the knowledge or consent of the plaintiff, your verdict should be for the plaintiff for the amount of the note and interest. 19 17 — Capital Bank v. Armstrong, 62 19— Lanum v. Patterson, 143 111. Mo. 59. App. 244. 18 — Lanum v. Patterson, 143 111. App. 244. § 697] Alteration op Instruments. 1117 §697. Evidence — Burden of proof. The court instructs the jury that the burden of proof is upon the plaintiff in this case, and unless the jury are satisfied, from the evidence, that the seal in question was added to the note since its execution, without the knowledge and consent of the parties thereunto, then they should find for the defendant. 20 The court instructs the jury that the law imposes upon the party offering a paper in evidence the explanation of any altera- tions which may appear therein, and therefore if, the jury believe, from the evidence, that any alteration has been made in the note in question, the burden of proof is upon the plaintiff to explain the same, and unless the jury believe, from the evidence, that such alteration has been explained by the plaintiff, the presump- tion of the law is that it was made by the plaintiff, and the jury should find for the defendant. 21 20 — Schwarz v. Herrenkind, 26 111. 21 — Sehwarz v. Herrenkind, 26 208. 111. 208. CHAPTER XLIX. ANIMALS. I. Breeding. i 698. Sale of stallion — Eeturn or tender on breach of warranty. II. Running at Large. i 699. Regulations — What constitutes violation. i 700. Same — Actions for penalties — Issues and proof. III. Liability for Injuries by Animals. i 701. Personal injuries — Ownership of animal. i 702. Same — Knowledge of vicious propensities. i 703. — Michigan. i 704. — New Hampshire. i 705. — North Carolina. i 706. — Texas. i 707. Same — Eestraining animal. i 708. Same — Provoking animal. i 709. — Iowa. i 710. — Massachusetts. i 711. Same — Warning of danger. i 712. Injuries to other animals— In general. i 713. Same — Knowledge of vicious propensities. i 714. Same^Spread or communication of contagious or infectious disease. (715. — Illinois. i 716. — Kansas. i 717. Injuries to property — In general. i 718. Same — Duty to fence. } 719. . Same — Sufficiency of fence. i 720. — Indiana. i 721. — Iowa. i 722. Actions — Issues and proof. i 723. Same — Evidence — Reputation of animal for viciousness. ! 724. Same — Questions for jury. i 725. Same — Damages. IV. Liability for Injuries to Animals. i 726. Injuring or killing trespassing animals — In general, i 727. — Arkansas. (1118) § 700] Animals. 1119 §728. —Illinois. § 729. Criminal offenses — Motive for act. § 730. Same — Aiders and abettors. Cross-Beference. Priority of lien of agister over lien of chattel mortgage, see Chattel Mortgages, § 2023. I. Breeding. § 698. Sale of stallion — Return or tender on breach of warranty. The court instructs the jury that if you believe from the evi- dence that the plaintiffs did not return or tender a return of the said stallion to the defendant in accordance with the terms of the contract, as set out in the plaintiffs' declaration, on or before the day of , 19 — , in as good and sound condition as said stallion was when sold by the defendant to the plaintiff, then you should find for the defendant. 1 II. Running at Large. §699. Regulations — What constitutes violation. The court instructs the jury that if they believe, from the evi- dence, that the defendant, , suffered his hogs to run at large outside of the corporate limits of the town of , with the expectation that they would run at large within the cor- porate limits of the town of , and they came within the limits of said corporation by reason of their being so permit- ted to run at large outside of the limits of said town, that then the defendant has suffered the said hogs to run at large in said town, within the meaning of said ordinance, and they must find him guilty and assess a penalty within the provisions of the ordinance. 2 § 700. Same — Actions for penalties — Issues and proof. The court instructs the jury that before the jury can find the defendant guilty, they must believe, from the evidence: 1st — That defendant's hogs were running at large within the corporate 1 — Gillenberg v. Divers, 165 111. 2 — Town of Collinsville v. Scan- App. 544. land, 58 HI. 221. 1120 Fobms of Instructions. [§ 700 limits of the town of — ; and 2d — That said hogs were so running at large within the corporate limits of said town by sufferance of the defendant. Although the jury may believe, from the evidence, that the defendant's hogs strayed from their usual place of running, into and within the corporate limits of the town of , yet, if the jury further believe from the evidence that they were so running within the corporate limits of the said town of without the knowledge or suffer- ance of defendant, they will find the defendant not guilty. 3 III. Liability for Injuries by Animals. § 701. Personal injuries — Ownership of animal. The court instructs the jury that under the law of this state a dog is recognized as a species of property. The word ' ' owner, ' ' alone, is riot of technical significance, and is to be construed according to the context and approved usage of the language. It means the person to whom the dog belongs. As bearing on the question as to who was the owner of this dog, you are instructed that if you find from the evidence that A, wjfe of the defendant^ herself bought the dog, and paid for it out of her own separate money, then you should find that the dog in question was owned by A, and, if you so find, then your verdict should be for the defendant. 4 The court instructs the jury that the fact, if you so find, that the defendant paid the taxes on the dog at the request of his wife out of his own money, would not have the effect to change the title, if you find that she bought and paid for the dog as last above explained. However, as bearing upon the question as to whether the defendant or his wife was the owner of the dog, you should take into consideration all the facts and circumstances shown or proven on the trial, including the question as to whether or not the defendant spoke of the dog as his dog ; the manner and sense in which such expression was used, if used; whether the dog would go with the defendant at times, if shown, and as 3 — Town of Collinsville v. Scan- 4 — Alexander v. Crosby, 150 Iowa land, 58 111. 221. 239. § 703] Animals. 1121 shown, and the circumstances thereof; the fact of his paying the taxes thereon, if you so find, and as the court has said, all other facts and circumstances shown on the trial bearing on the- ques- tion. 5 The court instructs the jury that our statutes provide in sub- stance that the owner of a dog shall be liable to any party in- jured for any damages done, except when the party is doing an unlawful act. The question for you to determine first is whether or not A was the owner of the dog, and if you find that he was not the owner, but that his wife [B] was the owner of the dog, then the defendant, A, would not be liable. If you find that B was the owner of the dog, then you need proceed no further, but return a verdict for the defendant. 6 The court instructs the jury that if the defendant had the dog in his possession, and was harboring him on his premises as owners usually harbor their dogs, then he is the owner within the meaning of the law. If the dog was only casually upon his premises, and was not being harbored by defendant as owners usually harbor their dogs, then he was not the owner. In deter- mining how this was at the time of the alleged attack, you will consider the defendant's former treatment of the dog, his decla- rations concerning him, and the habit of the dog as to staying at the defendant's place. 7 § 702. Same — Knowledge of vicious propensities. § 703. — Michigan. The court instructs the jury that though you may believe that the animal was not actually vicious up to the time of the injury and that had no knowledge of any viciousness in the bull, yet in view of the known and ordinary propensities of such an animal if you believe from the evidence that the manner of driving and managing the bull was negligent, then plaintiff is entitled to recover, if you believe from the evidence her conduct 5 — Alexander v. Crosby, 150 Iowa 7 — O'Hara v. Miller, 64 Iowa 462. 239. See Trumble v. Happy, 114 Iowa 624. 6 — Alexander v. Crosby, 150 Iowa 239. Blashfield Vol. 1—71 1122 Fobms of Instruction's. • [§ 703 on the occasion was not wanting in reasonable care and prudence in view of all the circumstances and surroundings of the injury. 8 § 704. — New Hampshire. The court instructs the jury that it is not absolutely necessary that an owner should have actual knowledge that the animal has injured others in a similar way in order to make him liable for the injuries, it is sufficient if the owner of the animal has seen or heard enough to convince a man of ordinary prudence of its inclination to commit injuries of the class complained of by plain- tiff. 9 §705. — North Carolina. The court instructs the jury that if you believe from the evidence that, the owner of the horse had knowledge of one vicious act of the animal showing it to be dangerous, he is liable thereafter if he fails to properly secure the animal, and injury to another person results from failure to restrain. 10 §706. —Texas. The court instructs the jury that one who keeps a dangerous dog, with knowledge of its vicious propensities, incurs a liability for any injury caused by it to another person. 11 The court instructs the jury that before the plaintiff can re- cover anything in this suit, he must establish by a preponderance of the testimony that the defendant owned the dog that did the injury to plaintiff ; that said dog was of a ferocious, vicious, and dangerous disposition; and that defendant knew that said dog was dangerous as aforesaid. But, after the owner of a vicious dog has notice of its vicious propensities, he cannot exonerate himself by showing that. he used care in keeping and restraining the animal, for after, such knowledge he assumes the' risk of keeping him securely. 12 8 — Barnum v. Terpening, 75 Mieh. 11 — Triolo v. Foster (Tex. Civ. 557. , App.) 57 S. W. 698. . 9 — Reynolds v. Hussey, 64 N. H. 12 — Triolo v. Poster (Tex. Civ. 64. App.) 57 S. W. 698. 10 — Cockerham v. Nixon, 33 N. C. 269. §710] Animals. 1123 § 707. Same — Restraining: animal. The court instructs the jury that the fact that the defendant or defendant's wife may have been able to control the dog by calling him off or speaking to him when he would run at any one, even if the jury believe this fact proven, is not such a restrain- ing as is contemplated by the law, and would not relieve or ex- cuse the defendant from the charge of negligence if the other facts in said cause are proven that would require the defendant to restrain his dog. 13 § 708. Same — Provoking- animal. § 709. — Iowa. The court instructs the jury that the defendant claims that plaintiff, in passing the bull, provoked the bull to make the at- tack upon him, by striking the bull with a cane or Stick, without reasonable cause. If you find that the plaintiff struck the bull, and thereby excited him to make the attack you will not assume, as a matter of law, that the plaintiff was in fault, but you will inquire whether, Under the circumstances, the plaintiff had or had not reasonable cause to strike the bull with his cane. You will carefully notice what the plaintiff did, if anything ; his situa- tion at the time, as it appeared to him ; and all the circumstances surrounding him; and decide whether he acted as a man of ordi- nary prudence or not. 14 §710. — Massachusetts. The court instructs the jury that if the plaintiff did not take the rope with intent to steal it, and did not do anything but what the ordinary junk dealer would properly do, they might find that he was in the exercise of due care, but if he was not acting as an ordinary junk dealer, and went about the houses and into the barn to see what he could find, and that he took the rope intending to steal it, as claimed by the defendant, then they might find that he was not in the exercise of due care. 15 13 — Dockerty v. Hutson, 125 Ind. 15 — Spellman v. Dyer, 186 Mass. 102. 176. 14 — Meier v. Shrunk, 79 Iowa 17. 1124 Fokms of Instructions. [§ 711 § 711. Same — Warning of danger. The court instructs the jury that if they believe from the evi- dence that at the time of the injury to the plaintiff there was displayed conspicuously in the ring in question a sign reading as follows: "Do not stand in the ring. Persons standing in this ring do so at their own risk ; ' ' and that the plaintiff knew of said sign, and that the plaintiff received his injuries while standing in the ring in question, then you are instructed that the plaintiff cannot recover and your verdict must be for the defendants. 16 § 712. Injuries to other animals — In general. The court instructs the jury that plaintiff is not prevented from recovering for the loss of his horse bitten by defendant's dog by reason of the fact that the horse injured was harnessed to a wagon and was being led tied behind another wagon, as plaintiff had the right to lead the horse in that manner, and the fact that he was so leading him was not evidence of negligence. 17 §713. Same — Knowledge of vicious propensities. The court instructs the jury that if they find that the defend- ant's horse was in pasture on his wife's premises and while there broke over her part of the partition fence, separating her said lands from the field in which plaintiff's horse was being right- fully pastured by him, then the defendant 's horse was unlawfully in the place where the plaintiff's horse was on pasture, and in such case, if the jury find that he killed plaintiff's horse, the de- fendant is liable to plaintiff for the injury, whether his horse was in fact vicious or not, and whether he knew of such viciousness or not. 18 The court instructs the jury that if the defendant's horse was at the time, trespassing in plaintiff's field, on plaintiff's land, or on the land of a third party where plaintiff was pasturing his horse by the month, for a consideration paid by plaintiff to such owner, and there attacked and killed plaintiff's horse, defendant 16 — Craney v. Schloeman, 145 111. 18 — Morgan v. Hudnell, 52 Ohio App. 313, aff'd 240 111. 602. St. 652, 27 L. E. A. 862, 49 Am. St. 17 — Loulester v. Parsons, 151 Bep. 741. Mass. 182. §716] Animals. . 1125 is liable for the injury, whether or not he knew of the vicious propensity of his horse. 19 §714. Same — Spread or communication of contagious or infec- tious disease. §715. —Illinois. The' court instructs the jury that in order that plaintiff may recover in this case, the jury must believe from the evidence that the defendant's sheep not only might, but actually did, com- municate the disease in question to plaintiff's sheep, and if the preponderance of the evidence fails to establish such facts or the evidence shows that it is probable that plaintiff's sheep be- came elsewhere infected, or that it was as likely they caught the disease elsewhere as from the defendant's sheep, then the jury should find the defendant not guilty. 20 The court instructs the jury that if they believe from the evi- dence that the defendants imported Texas cattle into and that said cattle so imported and belonging to defendants passed over the pasture where the plaintiff's cattle were grazing, and that the Texas cattle so imported by defendants and belong- ing to them imparted the infectious disease described in the dec- laration to the plaintiff's cattle and that plaintiff's cattle died of such disease, and if the jury believe from the evidence that said dattle of defendants had power to impart the disease of which plaintiff's cattle are alleged to have died, then the jury shall find defendants guilty. 21 §716. —Kansas. The court instructs the jury that, if you believe from the evi- dence that the defendant, A, brought or caused to be brought into county, State of , Texas cattle, or cattle liable to communicate Texas, Spanish or splenic fever to the domestic cattle of this state, and that said cattle came from the country south of this state between the first day of March, 19 — , and the 19 — Morgan v. Hudnell, 52 Ohio 20 — Herrick v. Gary, 8a 111. 85. St. 552,^27 L. E. A. 862; 49 Am. St. 21— Newkirk v. Milk, 62 111. 172. Rep. 741. 1126 Fobms of Instbuctions. [§ 716 first day of November, 19 — , and that defendant knew or had reason to know or could by ordinary diligence have known that said cattle were diseased cattle, or were cattle liable to communi- cate Texas, Spanish or splenic fever to the domestic cattle of this state ; or if the defendant knew or could with ordinary diligence have known that such cattle were diseased with such disease and were liable to communicate it to the domestic cattle of this state, and such cattle so brought or caused to be brought into said county, communicated such disease to the domestic cat- tle of the plaintiff, and thereby plaintiff's cattle died, you will find for the plaintiff and the value of such cattle as she lost as shown by the evidence. 28 The court instructs the jury that, if you find from the evi- dence that the defendant, A, purchased the cattle described in the petition in good faith in in this state without any knowledge that said cattle were infected with Texas, Spanish or splenic fever and that he had no reason to believe that such' cattle could or would communicate to cattle- of this state, Texas, Spanish or splenic fever, and that he did not know or have reason to believe or know that such cattle would or could communicate the Texas, Spanish or splenic fever to the cattle of this state, until they arrived at , and that the sheriff immediately seized such cattle by virtue of a process issued by W, a justice of the peace, and before the plaintiff's cattle had been exposed and were by the sheriff placed in quarantine, and the defendant A was deprived of any control over said cattle, and that during the time the said cattle were quarantined by the sheriff, and the defendant deprived of the control of said cattle, the plaintiff's cattle took such disease by going upon said quarantined ground • either while defendant's cattle were there in the custody of the sheriff or his deputy or after they were removed therefrom, then the plaintiff cannot recover in- the action. 23 22 — Patee v. Adams, 37 Kan. 133, 23 — Patee v. Adams, 37 Kan. 133, 14 Pac. 505. (Question is whether 14 Pae. 505. (Question is whether under the statute defendant must be under the statute defendant must shown to have knowledge.) be shown to have knowledge.) § 720] Animals. 1127 § 717. Injuries to property— In general. The court instructs the jury that if you believe from the evi- dence that the land was the property of plaintiff, and you believe from the evidence that the land was fenced and the defendant broke it down and thereby allowed his cattle to go upon the land, or if you believe from the evidence that the land was fenced and the fence had been broken down without defendant's fault, and he drove' his cattle upon the land, the plaintiff will be entitled to recover. 24 The court instructs the jury that a man has no right to care- lessly look on at the destruction of his property. It is his duty to use reasonable care to prevent such destruction ; and if he fails to use ordinary care, he cannot recover for the injury which by ordinary care he might have prevented. 25 § 718. Same— Duty to fence. The court instructs the jury that if you find that the plaintiff could, by the use of ordinary care, have prevented the horses and cattle from eating and destroying his hay and corn, he cannot recover for such hay and corn thus destroyed, which by ordinary diligence he might have prevented. The plaintiff, after he knew the horses and cattle of others were destroying his hay and corn, should have used reasonable caution to have prevented further injury, such as fencing his stacks, and fencing his corn beyond the reach of such stock, provided he could reasonably have done so. 26 § 719. Same — Sufficiency of fence. §720. — Indiana. The court instructs the jury that if you find from the evi- dence, that the fence, over which the stock of the defendant en- tered on the lands of the plaintiff, was a partition fence, dividing the lands of the parties to this suit, and that the stock of the defendant crossed over such fence at a place where it was the 24 — Erbes v. Wehmeyer, 69 Iowa 26 — Little v. McGuire, 38 Iowa 85. 560. 25 — Little v. McGuire, 38 Iowa 560. 1128 Forms of Instructions. [§ 720 duty of the plaintiff to maintain such fence, then defendant would not be liable in this case, unless the plaintiff has shpwn by the testimony of skillful men that the fence was such as good hus- bandmen generally keep. 27 § 721. — Iowa. The court instructs the jury that the plaintiff claims that his crop was destroyed by defendant's cattle. It is important that you determine whether the crop was destroyed by defendant's cattle; whether plaintiff's fence was a lawful fence, four and a half feet high, with spaces sufficiently close; was the fence four and a half feet high, and such as is generally, in this country, recognized as a good fence? This, is a matter entirely in your discretion. You will then inquire whether defendant's cattle broke into plaintiff's field and destroyed his crop; and if you find that the -fence was such a one as comes within the meaning of the law, and such a one as is recognized as a good common fence in the country, and the defendant's cattle broke through the inclosure, the defendant is liable for all damages resulting from such breach. In such case, it was the duty of the defendant to keep his cattle up, and not suffer them to run at large to the danger of his neighbor's property ; and if property was destroyed, he would be responsible. No man has the right to suffer to run at large, animals of a dangerous kind, either to the person or property of another; and if he does, he is responsible for all dam- ages which result from the acts of such animals. But if the fence was not a reasonable one, such as would be calculated to protect the property, the crop, and the loss was the consequence of the negligence of plaintiff, and that by ordinary care and prudence he could have protected the crops, it was his duty to do so; and if he failed to do so, and the fence was such as the custom of the country and the law would not recognize as a lawful fence, he would not be entitled to recover ; the loss would be a consequence of his own negligence and fault. 28 27— Hinshaw v. Gilpin, 64 Iud. 116. 28 — McManus v. Finan, 4 Iowa 283. § 722] .Animals. 1129 The court instructs the jury that if you find from the evidence that the defendant's fence, with the exception of one or two small gaps, was sufficient to have turned the stock, and find that the plaintiff knew ol these gaps, and that the stock would come through such gaps, and after knowing such facts, and knowing that the stock did come through said gaps, and if you find that plaintiff, with the exercise of ordinary care, could have prevented said stock from thus trespassing, and did not do so, he cannot recover for the damage which he might have thus prevented. 29 §722. Actions— Issues and proof. The court instructs the jury that the plaintiff has alleged in each paragraph, among other things, that he received the injury complained of without fault or negligence on his part. This is a material and necessary allegation. Without such allegation his complaint would not have been sufficient to have constituted a cause of action and before the plaintiff can recover he must have proved by a fair preponderance of the evidence that he did receive said injuries, without fault or negligence on his part, di- rectly and materially contributing to the injury. It is not enough to enable the plaintiff to recover that he shall have proved fault and negligence on the part of the defendant; he must also prove that he himself was free from such fault or negligence, and, if he has failed to prove by a fair preponderance of the evidence that he received the injury without such fault or negligence on his own part he cannot recover. 30 The court instructs the jury that the Commonwealth must prove that the defendant overdrove the horse knowingly, and intentionally; that the defendant, like all other men, was pre- sumed to know what he did, and to intend the natural and neces- sary results of his acts ; that if, in the proper exercise of his own judgment, he thought he was not overdriving the horse, he must be acquitted; and that upon these instructions the jury might come to the conclusion that it was a question of fact to be de- 29— -Little v. McGuire, 38 Iowa 30— Todd v. Danner, 17 Ind. App. 560. 368. 1130 Forms of Instructions. [§ 722 termined by the result of the testimony introduced by the Com- monwealth and by the defense. 3 * The court instructs the jury that the plaintiff has alleged in each paragraph of his complaint that the steer in question was of a dangerous and vicious disposition, in the habit of attacking mankind and animals. He has also alleged that the defendant knew of such dangerous and vicious disposition of said steer and that he, the plaintiff, had no knowledge of such dangerous and vicious disposition. To entitle the plaintiff to recover he must have proved by a fair preponderance of the evidence not only that the steer was dangerous and vicious, but that the defendant knew that fact and the plaintiff was ignorant of it. 32 §723. Same — Evidence — Reputation of animal for viciousness. The court instructs the jury that a dog cannot be proven to be vicious and liable to bite mankind by evidence that the general reputation is that the dog is vicious and so liable. 33 § 724. Same — Questions for jury. The court instructs the jury that some testimony has been produced here by witnesses who have stated to you the result of their reading in natural history, and the result of the opinion expressed by hunters and sportsmen, as to the general charac- teristics of the deer ; and it is for you to say how much is proved by that evidence. The plaintiff claims to show by that evidence that the deer at a certain season of the year is a dangerous ani- mal. It is for you to say whether, after the cross-examination of the witnesses, you can arrive at that conclusion. 34 The court instructs the jury that there are some questions in this case which the jury must decide, and the jury will be the sole judge as to those questions. The first of these questions is, "Was the defendant, at the time the stallion escaped, using that degree of care and precaution to prevent the escape of the stal- 31 — Com. v. Wood, 111 Mass 408. 34 — Spring Co. v. Edgar, 99 U. S. 32— Todd v. Danner, 17 Ind. App. 645, 25 L. Ed. 487. 368. 33— Triolo v. Foster (Tex. Civ. App.) 57 S. W. 698. § 725] Animals. 1131 lion which a person of ordinary caution and prudence would have used under like circumstances? In deciding this question, you should take into consideration all the evidence of the case, as to the size and age of the stallion and the manner in which he had been used and handled, his disposition, character, and propensi- ties, the kind and character of halter which was used, the lack of fence about the barnyard, the purpose for which the stallion was brought out of the barn, probable consequences of his escape, and any and all other facts and circumstances in evidence which, in your opinion, will aid you in determining whether the defendant used, due care and precaution to prevent the escape of the stallion. 35 « §725. Same — Damages. The court instructs the jury that the measure of plaintiff's damage for the loss or injury to the grass for the years and , if you find that he has sustained any damages in that regard, will be the actual damage done to the grass and crop for these years by the defendant's cattle; that is the difference be- tween the actual market value of the crop upon the land for those years as it was and what its market value would have been had the plaintiff's cattle not been driven or herded or pastured upon the land. To state it in other words, the question for you to determine from the evidence in fixing the amount of damages, if any, on this claim is how much less was the actual rental value of the land for the grass crop of these years by reason of the de- fendant's cattle having been driven or herded upon the land than it would have been had the cattle not been driven or herded upon the land? If you find that the plaintiff is entitled to recover in this case you will ascertain whether he has sustained any damages by reason of any permanent injury to the growth, of grass on said land. The plaintiff's damages upon this claim, if he is entitled to recover any, will be such only as injuriously affect the market value of the land. The question here to be de- termined is how much less, if any, was the land worth in the 35— Whitney v. Ritz, — N. D. — , 151 N. W. 762.' 1132 Fobms of Instbuctions. [§ 725 market by reason of the defendant's cattle having been driven or herded upon the land than it would have been had the cattle not been herded or driven on the land. 30 IV. Liability for Injuries to Animals. § 726. Injuring or killing trespassing animals — In general. § 727. — Arkansas. The court instructs the jury that the question for you to decide in this case is the motive that controlled the defendant in the killing of this dog. You are instructed that if he acted in good faith, and believed it was necessary to kill this dog in order to protect his property, he would be justified in doing it under the law; but if he killed without taking into consideration the cir- cumstances, if he acted negligently or wantonly in shooting the dog, then you will find for the plaintiff. 37 § 728. — Illinois. The court instructs the jury that if they believe from the evi- dence, that the relative value of the plaintiff's dogs and the portion of defendant's growing wheat which was being destroyed by said dogs, if the evidence shows that any wheat was being destroyed, was not disproportionate, and that the defendant to protect his property from such destruction, necessarily exercised the right to defend his property in a reasonable manner, all the circumstances surrounding the transaction being considered, then the jury will find for the defendant. 38 The court instructs the jury that the defendant had the right to use such means as were necessary for the purpose of putting the dogs out of his field, and if in . so doing it resulted in the mutilation of the animal in question it would not be a violation of law, and if the jury believe, from the evidence, that the defend- ant used such means as a reasonable man would use, all the circum- stances considered, to exclude the dogs from his field and from his wheat, and did no more harm to the dog than was necessary, 36 — Harrison v. Adamson, 86 Iowa 38 — Lipe v. Blackwelder, 25 111. 693. App. 119. 37 — Kanis v. Bogers, — Ark. — , 177 S. W. 413. § 730] Animals. 1133 under all the circumstances proved in the case, then the jury will find for the defendant. 39 § 729. Criminal offenses — Motive for act. The court instructs the jury that if you believe from the evi- dence that defendant killed the hogs while they were depredating on his crops and to protect them from destruction and not out of a spirit of cruelty to the animals you will find him not guilty. 40 § 730. Same — Aiders and abettors. The court instructs the jury that although the defendant stands indicted with others, he is not chargeable with anything which any other one named in the indictment may have done, unless he advised, aided, or abetted others in the commission of the offense, intending at the time, by his word or act, to aid or en- tourage the commission of the offense. Even though the jury should believe that A and B threw the hog in controversy over the fence some time between 10 and 12 o'clock of the day on which the hog was found dead, and the hog was dead at the time it was thrown over the fence, the defendant's participation in the act of throwing the hog over the fence would not constitute him guilty of the offense charged in this case, unless the jury believe beyond a reasonable doubt that he had before that time killed the hog, or assisted in killing it, or aided or abetted, coun- seled or encouraged some one or more in killing the hog. 41 39— Lipe v. Blackwelder, 25 111. 41— Howser v. State, 117 Ala. 176. App. 119. 40 — Stephens v. State, 65 Miss. 329. CHAPTER L. APPRENTICES. § 731. Discharge — Eight to damages. Cross-Beference. Matters pertaining to relation of master and servant in general, see Master and Servant. § 731. Discharge — Right to damages. The court instructs the jury that if you find that. plaintiff, after he was refused a raise of wages by defendant, wilfully neglected and slighted his work for the purpose of forcing the defendant to discharge him, then he cannot recover. 1 The court instructs the jury that the plaintiff was bound by the terms of said contract to the same extent as the defendant and plaintiff had no right to demand more wages than the con- tract provided, and had no right to resent the action of the de- fendant in refusing to give him higher wages, if you find that he did resent it. 2 1 — Lepah v. MacKinnon Boiler & 2 — Lepan v. MacKinnon Boiler & Machine Co., 178 Mieh. 18. Machine Co., 178 Mich. 18. (1134)' CHAPTEE LI ARBITRATION AND AWARD. § 732. Award — Validity — In general. § 733. Same — Resignation of arbitrator induced by fraud of co-arbitrators. § 734. Same — Conclusiveness — Implied agreement. § 732. Award — Validity — In general. The court instructs the jury that if you find from the evidence, that the plaintiff and defendant agreed to submit their differ- ences to arbitration, and if you find such award was made as agreed, you should find for the plaintiff for the amount found by the arbitrators in such matter, unless you further find (1) that said award does not include all the differences in dispute between plaintiff and defendant at time of the alleged award ; or (2) that defendant was not accorded a reasonable notice of the time of the hearing. 1 § 733. Same — Resignation of arbitrator induced by fraud of co- arbitrators. The court instructs the jury that if you believe from the evi- dence that one of the arbitrators, , was induced to resign or withdraw from the arbitration by reason of the agree- ment of the other two arbitrators, and , to withdraw and resign their authority as such arbitrators, and thereby the said arbitrator , so resigning, was pre- vented from meeting with the arbitrators at the time of the mak- ing of the award, in such case the award is void, and you should find for the defendant. 2 § 734. Same — Conclusiveness — Implied agreement. The court instructs the jury that if you find from the evidence in this case that the plaintiff and defendant mutually agreed to 1 — Amos v. Buck, 75 Iowa 651. 2 — McCord v. McSpaden, 34 Wis. 541. (1135) 1136 Forms op Instructions. [§ 734 submit a matter in controversy between them to arbitrators, and to abide by their award, and that said arbitrators did meet under said agreement and render an award, you should find for the plaintiff. You are further instructed that if you find from the evidence that after said arbitrators had the matter under investi- gation they adjourned, and notified the parties that they could not agree and had adjourned, then your verdict should be for the defendant, unless you further find from the evidence in the case that the parties afterwards agreed to submit to and abide by any award they might render. You are further instructed that it is not necessary that the evidence show that the parties plaintiff and defendant actually agreed, in so many words, to submit the matter in controversy to, and abide by, the award, but such agree- ment may be inferred by you from the acts and conduct of the parties plaintiff and defendant, and all the facts and circum- stances introduced as evidence must show that both parties agreed to submit the matter and to abide by the award ; for if one of the parties agreed, and the other did not, the verdict should be for the defendant. You are further instructed that the plaintiff is required to make out his case by a preponderance of the evi- dence. 3 3 — Couch v. Harrison, 68 Ark. 580. CHAPTER LIL ARCHITECTS. § 735. Authority — Employment of labor. § 736. Compensation — Plans for building whose estimated cost exceeds amount stipulated. § 737. Same — Negligence in superintending construction of building. § 738. Liability of negligence — Care and skill required in superintending con- struction of building. Cross-Reference. See Building and Construction Contracts. § 735. Authority — Employment of labor. The court instructs the jury that if they believe from the evi- dence that defendants (employed A as their architect, to draw for them plans and specifications for a building to be erected for defendants and to superintend the building during its erec- tion, and that defendants entered into a contract with B to erect such building and complete it for a stipulated price according to such plans and specifications, and if the jury believe from the evidence that the plans and specifications called for brick piers under said building and that the building so contracted for was in process of erection by B under the contract with the defend- ants, given in evidence in this case, and that A acted as architect under said contract, then, although the jury may further believe, from the evidence, that A while so acting, employed the plaintiffs to remove the brick piers and put stone ones in their places, and that there was necessity for so doing, yet the court instructs the jury as a matter of law, that A by virtue of his employment as architect, had no authority to bind defendants by employing plaintiffs to do said work and in the absence of proof that defend- ants authorized A beforehand to do so, or had knowledge of all the facts, and subsequently ratified such act of employment, the (1137) Blashfleld Vol. 1—72 1138 Fobms of Instructions. [§ 735 jury should find for defendants, and the court instructs the jury that if they believe from the evidence that at the time of doing the work in question here sued for B was constructing the building either by himself or his subcontractors, and that B was doing said work under the said special contract given in evidence, then, although the defendants, or one of them, was present at times when plaintiffs were doing the work in question, and said work was for their benefit or the benefit of the premises, still, the law will not imply an undertaking on the part of defendants to pay for said work. 1 §736. Compensation— Plans for building whose estimated cost exceeds amount stipulated. The court instructs the jury that if they find that defendant employed plaintiff to draw plans for the avenue house, and was advised by plaintiff, before the completion of the plans, • that the house would cost , and that defendant, after beting advised of the probable cost of the building, directed plaintiff to go on and complete the plans, he 'would be liable to plaintiff for his services as architect, although he may have previously determined not to invest so large amount in said building. 2 The court instructs the jury that if they find that the defend- ; ant, after knowing or being fully advised of the cost of the con- struction of the houses according to the plans and specifications therefor exhibited in evidence, by a payment or otherwise, ac-, cepted the work of plaintiff thereon, he would be liable in like manner as if he had originally contracted with plaintiff for plans of houses to cost such sum. 3 § 737. Same — Negligence in superintending construction of build- ing. The court instructs the jury that if they believe from the evi- dence that plaintiff was employed by defendant as architect to superintend the erection of the building described in the decla- ration and that plaintiff had control of the workmen employed 1— Campbell v. Day, 90 111. 363. 3— Hight v. Klingensmith, 75 Ark. 2 — Hight v. Klingensmith, 75 Ark. 218. 218. § 738] Architects. 1139 in the construction of the building and that the workmen were to be paid in installments as the building progressed and on pro- duction of the architect's certificates, and that plaintiff suffered a substantial defect in the work to pass uncorrected, which ordi- nary vigilance could have prevented, then the jury are instructed that plaintiff cannot recover for his services. 4 § 738. Liability for negligence — Care and skill required in super- intending construction of building. The court instructs the jury that if a person employs an archi- tect to draw plans for him and superintend the proper erection of the buildings and such architect is made the superintendent in the contracts between the owner and the contractors, and he only undertakes to give such superintendence as an architect usually gives, it is the duty of such architect to exercise such care and skill in the superintending of work on such buildings, as is cus- tomarily required from architects, and if the jury believe from the evidence that the defendant did not exercise the skill and care which architects are customarily required to exercise, and damages resulted to plaintiff from the failure to exercise such care and skill, then the jury should find for the plaintiff. 5 4 — Peterson v. Kawaon, 15 N. Y. 5 — Vigeant v. Scully, 20 111. App. Super. Ct. (2 Bosw.) 234. 437. CHAPTER LIII. ARREST. § 739. Eight to arrest without warrant— In general. § 740. — Michigan. § 741. — South Carolina. § 742. — Texas. Cross-Beferences. Liability for illegal arrest, see False Imprisonment; Malicious Prosecution. §739. Right to arrest without warrant — In general. §740. —Michigan. If the jury shall find that tlie plaintiff, was at the time she was arrested walking on the street without molesting any one, then she was not committing any act that would justify the defendant in arresting her without a warrant, and his act in arresting her was unjustifiable, and the burden is on him to justify the act. 1 If the jury shall find that the plaintiff, at the time she was arrested by the defendant was conducting herself in an orderly manner, and not committing any breach of the peace, then the defendant had no right or authority to arrest her. 2 No officer is justified in making an arrest without a warrant, when the person whom he arrests is peaceable and not engaged in open violence, as for example, by fighting, engaging in a riot, or about to escape after committing a felony. 3 1— Pinkerton v. "Verberg, 78 Mich. 3 — Pinkerton v. Verberg, 78 Mich. 573, 7.L B. A. 507, 18 Am. St. Rep. 573, 7 L. R. A. 507, 18 Am. St.. Rep. 473. 473. 2 — Pinkerton v. "Verberg, 78 Mich. 573, 7 L. R. A. 507, 18 Am. St. Rep. 473. (1140) § 742] Abbest. 1141 The law does not look with favor on arrests made without a warrant, and an arrest without a warrant cannot be justified if the person arrested was not engaged in a breach of the peace, as for example in fighting or in a riot or about to escape after hav- ing committed a felony. 4 §741. — South Carolina. The court instructs the jury that an officer or a private indi; vidual may lawfully arrest, without a warrant, one whom he has reasonable grounds to suspect of having committed a felony. An officer or a private individual may also arrest, without a war- rant, a person upon suspicion of felony, upon the information of a third person. An officer or a private citizen may lawfully ar- rest, without a warrant, one whom he has reasonable grounds, to suspect of having committed a felony; and it is immaterial whether the suspicion arises out of information given by another, or whether it arises out of the officer 's own knowledge. 5 The court instructs the jury that an individual, without a war- rant, acting in good faith, may arrest a particular individual for having committed a felony in a sister state on an occasion al- ready passed. 6 §742. —Texas. The court instructs the jury that this is an action by plaintiff against the defendant, for the illegal arrest by defendant of plaintiff, under circumstances of aggravation, as alleged by plain- tiff. Under the laws of , no civil officer has the right to arrest a citizen of — unless he has a warrant, and if demanded, to exhibit same; or unless some offense against the criminal law is committed, by the person arrested, in the presence of the officer. 7 4 — Pinkerton v. Verberg, 78 Mich. See State v. Davis, 53 S. C. 150, 69 573, 7 L. E. A. 507, 18 Am. St. Rep. Am. St. Eep. 845. 473. 6— State v. Whittle, 59 S. C. 297. 5— State v. Whittle, 59 S. C. 297. 7— Hall v. O'Malley, 49 Tex. 70. CHAPTEE LIV. ARSON. § 743. In general. § 744. Nature and elements of crime — "Burning." § 745. Same — ' ' Destruction or consumption of part of house. ' ' § 746. Same — Explosion. § 747. Issues and proof — Ownership of property. § 748. Parties to crime — Aiders and abettors. § 749. Same — Conspirators. § 750. Evidence — Weight and sufficiency — Confession. Cross- References. Fires caused by sparks from locomotives, see Eaileoads; matters pertain- ing to law of crime in general, see Criminal Law. § 743. In general. The court instructs the jury that if they find and believe from the evidence that at the county of and state of , at any time within years next before the day of , 19 — , the date of the filing of the information in this case, that the defendant, A, did then and there unlawfully, willfully, ma- liciously, and feloniously set fire to and attempt to burn a certain building, to wit, a storeroom at No. street, there situate and adjoining to a certain inhabited dwelling house of one B, there situate, and that said inhabited dwelling house of the said B, by the firing, if any, of the said storeroom as afore- said was then and there endangered, then you will find the de- fendant guilty as charged in the information, and assess his punishment at imprisonment in the state penitentiary for any term not less, than years. Willfully means intentionally, not accidentally. Feloniously means wickedly and against the ad- monitions of the law, unlawfully. Maliciously means a wrongful act intentionally done without just cause or excuse. 1 1— State v. Myer, 259 Mo. 306. (1142) § 747] Abson. 1143 § 744. Nature and elements of crime — "Burning." The court, instructs the jury to find that the building was burned if it was in some appreciable degree burned or consumed. The burning is sufficient as an element in said crime, if it shall appear that the woodwork or inflammable parts of the said building were by the fire to some extent consumed. In other words, if fire was communicated to the woodwork or other in- flammable materials of which said building was constructed or composed to such an extent as that the same were in some measure destroyed, the fire being shown to have been so communicated as that, unless put out, the said building would probably have been, as to the inflammable parts thereof, wholly destroyed, then the proof made will be sufficient to support the charge made in the indictment. If, therefore, you find from the evidence before you that the fire which was discovered in the building had so far progressed as that the woodwork or inflammable material in the room in question was found to be on fire, and that such wood- work was in some degree charred or destroyed by such fire, and that such fire, unless put out, would have gone on to a probable destruction of said building, then you will be justified in finding in the affirmative of the first proposition submitted to you, viz., that the building was in some appreciable degree consumed. 2 § 745. Same — "Destruction or consumption of part of house." The court instructs the jury that if the surface of any plank or part of the latticework of said house was charred by the flames, this is a destruction or consumption of a part of said house, within the meaning of the law. 3 § 746. Same — Explosion. The court instructs the jury that the explosion of a house by means of an explosive matter does not come within the definition of ' ' arson, ' ' unless it results in setting the house on fire.* § 747. Issues and proof — Ownership of property. The court instructs the jury that if the State failed to prove by evidence of title, ownership of the property fired as charged 2 — State v. Spiegel, 111 Iowa 701. 4 — Landers v. State, 39 Tex. Cr. 3— Benbow v. State, 12,8 Ala. 1. App. 671. 1144 Forms of Instructions. [§ 747 in the indictment, the jury can not find the defendant guilty. 5 §748. Parties to crime — Aiders and abettors. The court instructs the jury that if they find from the evi- dence, beyond a reasonable doubt, that defendant was informed of the object of A in going to the premises, and did hold the horse while he or another set fire to the house, they should find him guilty. 6 §749. Same — Conspirators. The court instructs the jury that if you believe from the evi- dence, beyond a reasonable doubt, that the defendants, or any of them, together or with others, prior to the fire in question entered into a conspiracy to commit the crime of arson as charged in the indictment, and you further believe from the evidence, beyond a reasonable doubt, that thereafter said conspirators, or any of them, pursuant to said conspiracy and in furtherance thereof, set fire to and burned said building as charged in the indictment, then such defendants, if any, as entered into said conspiracy, are guilty of the crime of arson. 7 The court instructs the jury that if you find from the evidence in this case, beyond a reasonable doubt, that the defendants A and B, and C, prior to the commission of the crime charged herein, entered into a criminal conspiracy for the purpose of burning the property of D, as alleged in the indictment, and if you further find from the evidence, beyond a reasonable doubt, that pursuant to such conspiracy and in furtherance thereof C did burn the property of D, as alleged in the indictment, then the act of C was the act of all of the persons who joined the conspiracy, and all persons so participating in such conspiracy are guilty of arson. 8 The court instructs the jury that if you believe from the evi- dence, beyond a reasonable doubt, that the defendants, or any of them, willfully and maliciously burned the building of A men- 5— Boles v. State, 46 Ala. 204. 7— People v. Harris, 263 111. 406. 6 — People v. Jones, 123 Cal. 65, 55 8 — People v. Spira, 264 111. 243. Pac. 698. § 750] Aeson. 1145 tioned in the indictment, or willfully and maliciously caused it to be burned in manner and form as alleged in the said indict- ment, without the consent of the owner thereof, then the defend- ants, or such of them as to whom you have such belief, are guilty of arson, and you will find them or him guilty as charged. 9 § 750. Evidence — Weight and sufficiency — Confession. The court instructs the jury that if you believe from the evi- dence in this case that the house charged in the indictment was a gin house ; if you should 'find that the house was burned mali- ciously, burned in the manner as charged in the indictment, and defendant has confessed that he did it that way, then that is suffi- cient corroboration, and that if you find there is any confession, and that it has been corroborated by other facts and circum- stances satisfactory to your mind beyond a reasonable doubt it is your duty to convict the defendant. 10 The court instructs the jury that if the evidence be clear and decisive, satisfying your minds beyond a reasonable doubt that the storehouse was willfully and maliciously burned, and if you believe that the defendant freely and voluntarily confessed that he did it, then such a confession thus corroborated may, in your discretion, serve as sufficient corroboration to authorize a con- viction. 11 9— People v. Spira, 264 111. 243. 11— Morgan v. State, 120 Ga. 499. 10— "Wimberly v. State, 105 Ga. 188. CHAPTEE LV. ASSAULT AND BATTERY. I. "Civil Liability. § 751. Nature and elements of tort — In general. § 752. — Kentucky. § 753. — Missouri. § 754. — Washington. § 755. Same — Insulting words. > § 756. Same — Indecent assault on female. 1757. —Illinois. § 758. — Indiana. § 759. Intent and malice. § 760. Ability to inflict injury. § 761. Proximate cause of injuries. § 762. Persons liable — Aiders and abettors — In general. § 763. — Alabama. § 764. — Illinois. § 765. Same — Same — Person called by town marshal to latter 's assistance. § 766. Defenses — Accident. § 767. Same — Agreement to fight. § 768. Same — Insulting words. § 769. Same — Good faith and absence of malice. § 770. Same — Self-defense — In general. § 771. Same — Same — Duty to retreat. § 772. Same — Same — Degree of force justifiable. § 773. — Arkansas. § 774. — Indiana. § 775. — Kentucky. I 776. — Michigan. § 777. — Missouri. § 778. — Texas. I 779. Same — Defense of property. § 780. — Georgia. § 781. — Illinois. ' §782. —Iowa. § 783. — Michigan. I 784. — Missouri. I 785. — Nebraska. (1146) Assault and Batteby. 1147 § 786.- — Washington. § 787. — Wisconsin. § 788. Same — Attempted escape of plaintiff after arrest for misdemeanor. § 789. Same — Disorderly conduct of plaintiff while under arrest. § 790. Issues and proof. § 791. Evidence — Presumptions and burden of proof. § 792. Same — Weight and sufficiency — In general. § 793. Same — Same — Degree of proof required. § 794. Questions for jury. § 795. Damages — Actual damages. § 796. — Indiana. § 797. — Iowa. S 798. — Kentucky. § 799. — Maryland. § 800. — Minnesota. § 801. — Nebraska. § 802. — Texas. \ 803. — Wyoming. § 804. Same — Same — Mitigating facts. § 805. — Missouri. § 806. — Texas. § 807. Same — Exemplary damages. i 808. — Kentucky. 5 809. — South Dakota. i 810. — Texas. I 811. — Wisconsin. i 812. — Wyoming. II. Criminal Liability. i 813. Nature and elements of crime — In general. i 814. — Alabama. i 815. — Oregon. j 816. Same—' ' To beat ' ' construed. i 817. Same — Insulting words. i 818. Same — Chastisement of child by person in loco parentis. i 819. Same — Aggravated assault — In general. i 820. Same — Same — On female. i 821. Intent and malice — Aggravated assault on female. i 822. Same — Shooting at another. i 823. Ability to inflict injury. i 824. Defenses — In general. . i 825. — Georgia. i 826. — Texas. i 827. Same — Corrective purpose. i 828. Same — Excessive punishment of child. 829. Same — Insulting words. : 830. Same — Self-defense — In general. 1148 Foems of Instructions. § 831. Same — Same — Combat by mutual consent. § 832. Same — Same — Apprehension of danger. § 833. — Oregon. § 834. — Texas. § 835. Same — Same — Duty to retreat. § 836. Same — Defense of another. § 837. Evidence — Presumptions and burden of proof. Cross-Beference. Assault with intent to kill, see Homicide. I. Civil Liability. § 751. Nature and elements of tort — In general. §752. —Kentucky. The court instructs the jury that if you believe from the evi- dence that on or about the day of , 19 — , the defend- ant, A, not in his necessary, or to him apparent necessary, self-defense, as defined in instruction No. — , assaulted, beat, or bruised plaintiff, and thereby injured him, you will find for plain- tiff. 1 § 753. — Missouri. The court instructs the jury that if defendant violently and willfully beat and wounded the plaintiff, then the verdict should be for him unless plaintiff first made an attack on defendant and that he resisted such attack by using no more force to repel it than was necessary. 2 The court instructs the jury that they should find for the plain- tiff, if they believe from the evidence that defendant maliciously assaulted plaintiff, and that in so , doing he was not acting in self-defense of his person or of his father. 3 The court instructs the jury that if the jury believe from the evidence that the defendants or either of them, either alone or with other persons present at the time, all -acting in concert to- gether, with the same common purpose or design, assaulted the plaintiff while the plaintiff was discharging his duties as a con- 1— Eenfro v. Barlow, 131 Ky. 312. 3— Courtney v. Kneib, 131 Mo. 2 — Johnson v. Daily, 136 Mo. App. App. 204. 534. § 757] Assault and Battery. 1149 ductor in the employment of the Railroad Company and in charge of said company's car, and that while engaged in so assaulting plaintiff the defendants, or either of them, or any one or more of such persons, if any, present at the time and acting in concert as above explained with the defendants, or either of them, did strike or beat the plaintiff over his head or his hand or both with a beer bottle, and that such assault, striking and beat- ing were so made on the plaintiff without just provocation, then you will find a verdict in favor of the plaintiff and against the defendant or defendants making such assault. 4 § 754. — Washington. The court instructs the jury that an assault is an action, or conduct, on the part of the defendant — for instance, if you be- lieve her testimony that he shook his fist in front of her face angrily and unlawfully, when he was in such proximity to her, as that he could, or might have, struck her, also near enough to produce a feeling on her part that she might be struck, that would be an assault. Then, of course, if he did strike her, that would be an assault and battery. She may recover in case you only find assault, or in case you find assault and battery, if you find it was made unlawfully and under the circumstances I have mentioned. 5 § 755. Same — Insulting words. The court instructs the jury that words do not constitute an assault. 6 The court instructs the jury that the plaintiff in this case is not entitled to recover any damages by reason of any words that it is claimed were spoken by the defendant. 7 § 756. Same — Indecent assault on female. §757. —Illinois. The court instructs the jury that if they believe from the evi- dence, that the defendant assaulted the plaintiff, as testified to 4 — Brouster v. Fox, 117 Mo. App. 6 — .Galvin v. Starin, 132 App. Div. 711. (N. Y.) 577. 5 — Howell v. Winters, 58 Wash. 7 — Galvin v. Starin, 132 App. Div. 436, 108 Pac. 1077. (N. Y.) 577. 1150 Fobms o"f Instructions. [§ 757 by her, by laying his hands on her, accompanied with the threat that he would kill her, or words, in substance, that if she did not consent to sexual intercourse with defendant, this in itself will warrant the jury in finding the defendant guilty, although the jury may further believe, from the evidence, that she ultimately freely assented to such intercourse. If, however, the jury believe that such ultimate assent was not freely given, but was yielded by the plaintiff only as a consequence of the preceding violence or force, then such sexual intercourse should be regarded by the jury as a part of the assault, and a ground for exemplary dam- ages — that is, such as will compensate the plaintiff for any wrong to her, and to punish the defendant, and to furnish an example to deter others from like practices. 8 §758. —Indiana. The court instructs the jury that if they believe, and find from the evidence that on — ; , 19 — , the defendant went to the home of plaintiff in the town of , county, , and then and there requested said plaintiff to have sexual inter- course with him and then and there, in a rude and insolent man- ner, and with force took hold of plaintiff, and hugged her and kissed her, and felt her breasts, and attempted to raise her cloth- ing, during all of which time said defendant implored plaintiff to yield to his solicitations and sexual intercourse, all of which was against the will of said plaintiff, then your verdict will be for the plaintiff. 9 § 759. Intent and malice. The court instructs the jury that the plaintiff had a right to go about the public roads or places on his own business, free from molestation by the defendant or any one, so long as he con- ducted himself in an orderly manner. And any one guilty of violating any of these rights is liable for the actual damages suffered therefrom by the injured person. It matters not whether the wrong be one of pure neglect or a wanton or wilful wrong ; 8— Miller v. Balthasser, 78 111. 302. 9 — Timmons v. Kenrick, 53 Ind. App. 490. § 763] Assault and Battery. 1151 an action will lie for the actual damages suffered. Actual malice or wanton and wilful conduct on the part of the wrongdoer is material only on the question of punitive or exemplary damages and must be shown in order to recover such damages ; but, if you find that the plaintiff in this case has been injured by the wrong- ful acts of the defendant, you have a right to assess actual or compensatory damages against the defendant caused by such wrongful acts regardless of whether there was any actual malice or intent to do wrong on the part of the defendant or not. 10 § 760. Ability to inflict injury. The court instructs the jury that wantonly and recklessly pointing a revolver at another, when but a few feet away, under such circumstances as would instantly lead such other to believe it to be loaded, would be an assault, whether such revolver was in fact loaded or not, if you find from the evidence that the act of the person holding stich revolver was such as to cause a reason- able person to believe that he intended to do harm with it. 11 § 761. Proximate cause of injuries. The court instructs the jury that if you find from the evidence that the plaintiff was diseased at and before the punishment com- plained of, and that her present condition is attributable to such former diseased condition, and not in any manner or part at- tributable to such punishment, then you must find for the defend- ant. If you find that the plaintiff was diseased at and before the punishment she received, if any, but that by the punishment her disease has been aggravated ' or intensified, then you will give her damages for just such injuries as she has sustained which were the result of the punishment. 12 § 762. Persons liable — Aiders and abettors — In general. §763. —Alabama. The court instructs the jury that if A aided, abetted, or en- couraged B in entering into or continuing an unlawful assault 10 — Williams v. Campbell, 22 Wyo. 12 — Treschman v. Tresehman, 28 1, 133 Pac. 1071. Ind. App. 206. .11— Atkins v. Gladwish, 27 Neb. 841. 1152 Fobms of Insteuotions. [§763 on plaintiff, then he would be responsible for whatever B did in the furtherance of such assault, notwithstanding that he may not have explicitly encouraged,, aided, or abetted any one particular act of defendant B. 13 §764. —Illinois. The court instructs the jury that if the jury believe from the evidence, that the plaintiff had not committed any offense alleged in the l defendants' pleas, and that they both concurred in laying hands on him and arresting him, then the jury are instructed that they should find both the defendants guilty, and assess the plaintiff's damages. 14 The court instructs the jury that if they believe from the evi- dence and under the instructions herewith given, that the de- fendants, A and B, were both engaged in the common purpose of unlawfully arresting the plaintiff, and that A had laid hold of the plaintiff, and that B immediately afterwards, in pursuance of said common purpose of unlawfully arresting said plaintiff, struck said plaintiff with a club, and that said striking was done in the presence of A, and that A did not try to prevent the same, but, on the contrary thereof, adopted and approved said act of said B in striking said plaintiff, then the jury are instructed that said A is as responsible in this action for said striking as is B. 15 §765. Same — Same— Person called by town marshal to latter 's assistance. The court instructs the jury that the defendant A is not liable for the wrongful conduct of the defendant B unless he (A) was giving aid, assistance, or in some way encouraging the defendant B in the wrongful conduct. If you find that the defendant A was called by the defendant B, who was acting as town marshal, to go along with him for that purpose, and without any purpose 13 — Abney v. Mize, 155 Ala. 15 — Mullin v. Spangenberg, 112 391. ■ 111. 140. 14 — Mullin v. Spangenberg, 112 111. 140. § 765] Assault and Battery. 1153 to do anything other than that which was necessary to arrest the plaintiff, and that while they were so engaged in such arrest, or attempt to recapture the plaintiff after he had fled, if he did flee, the defendant B shot the plaintiff, and that such shooting, was necessary, still the . defendant A would not be liable for damages resulting from such shooting unless the said defendant A in some way aided, abetted, or encouraged the defendant B to shoot the plaintiff; and you should, on such facts, find for the defendant A. 16 The court instructs the jury that the fact, if it is a fact, that the town marshal called upon A to assist him in the discharge of his official duties, was sufficient ■ authority on the part of A to justify him in going with such marshal to assist him in the dis- charge of his official duties; and if the defendant A did go with his codefendant to assist him under such circumstances as above stated, and remained on the outside of the house to watch, as di- rected by said marshal, and acted in good faith, and did not personally commit an assault or an assault and battery upon the plaintiff, then, in such case, he would not be liable, and you should find for the defendant A, even if you should believe that the de- fendant B [the marshal] exceeded his jurisdiction and acted without authority, and wrongfully committed an assault and bat- 'tery upon the plaintiff. 17 The court instructs the jury that every person must aid an officer in the execution of a warrant, if the officer requires his aid, and be himself present and acting in its execution. The per- son who is thus called on is protected by the call from being sued for rendering the requisite assistance. If the officer has no war- rant, or authority that will justify him, he may be liable as a trespasser; but the person who is called upon for aid, having no means of knowing what the warrant is by which the officer acts, and who relies upon the official character and call of the 16— Stuck v. Yates, 30 Ind. App. 17 — Stuck v. Yates, 30 Ind. App., 441. 441. Blashfield Vol. 1—73 1154 Forms op Instructions. [§ 765 officer as his security for doing what is required to do, is clearly entitled to protection against suit by the person arrested. 18 The court instructs the jury that if the jury should believe from the evidence in the case that the defendant A used more force than was necessary to accomplish the arrest, or to recap- ture the plaintiff after he fled, if he did flee, still, if the jury find that the defendant B used no more force than was necessary for such purpose, and that he was not aiding, abetting, or encouraging the defendant A in the use of such excessive force, in such case the plaintiff could not recover against the defendant B, and you should find for him. 19 §766. Defenses— Accident. The court instructs the jury that if they find from the evidence that the defendant did not assault the plaintiff, but having his pistol in his hands for a lawful purpose, and by the negligent or careless handling of the pistol or by accident the pistol was discharged and the plaintiff received an injury, he cannot recover damages for that injury in this action. Again, if the plaintiff assaulted the defendant, the defendant having the pistol in his hands and the discharge of the pistol was caused by the pushing and jostling and assault of the plaintiff and it was discharged without design on the part of the defendant, then the defendant would not be liable for damages for the injury consequent upon the discharge of the pistol. 20 § 767. Same — Agreement to fight. The court instructs the jury that if you believe from the evi- dence that plaintiff and defendant voluntarily and by agreement entered into a fight, still I charge you that such agreement, if made, was unlawful, for the reason that such agreement, if made, would be in violation of the laws of the state and void, and such agreement, if made, would not be any defense to this action. 21 18— Stuck v. Yates, 30 Ind. App. 20 — Krall v. Lull, 49 Wis. 403. 441. 21— Morris v. Miller, 83 Neb. 218, , 19— Stuck v. Tates, 30 Ind. App. 20 L. R. A. (N. S.) 907n, 131 Am. 441. St. Rep. 636, 17 Ann. Cas. 1047. § 770] Assault and Batteby. 1155 § 768. Same— Insulting words. The court instructs the jury that the plaintiff, as conductor, had a right, and it was his duty, to remonstrate against offensive and disorderly conduct on the car, and that if defendants per- sisted in such conduct, he had the right to order such of them as persisted therein, from the car, and if necessary, to eject such person or persons; and further, that any words used by plaintiff in requesting them to desist from such conduct or in threatening to eject them from such car if they persisted in being rude, was no justification for an assault upon the plaintiff. 22 § 769. Same — Good faith and absence of malice. The jury are' instructed that though a teacher may inflict reasonable and necessary corporal punishment upon a pupil, if the jury believe that the punishment inflicted was unnecessary and excessive the fact that the teacher acted honestly in good faith and without malice is no defense. 23 § 770. Same — Self-defense — In general. The court instructs the jury that the right. of self-defense is derived from nature. To repel force by force is the common instinct of every creature that has means of defense. Sudden and strong resistance to unrighteous attack is not merely a .thing to be tolerated. In -many cases it is a moral duty. Municipal law has left to individuals the exercise of this natural right of self-defense in all cases in which the law is either too slow or too feeble to stay the hand of violence, and it is to be considered that a man repelling imminent danger cannot be expected to use as much care as if he had time to act deliberately. 24 The court instructs the jury that the law permits every man to defend himself when wantonly assailed, and in such defense it requires of him only such prudence as is common among ordinarily careful men, and that, if unusual and not to be 22— Brouster v. Fox, 117 Mo. App. 24— Norris v. Whyte, 158 Mo. 20. 711. 23 — Lander v. Seaver, 32 Vt. 114, 76 Am.' Dec. 156n. 1156 Foems of Instructions. [§ 770 expected results follow from a defense so made, the original wrongdoer and aggressor must suffer for them, and not he who only engaged in his own defense, and could not reasonably have foreseen such unusual results. 25 The court instructs the jury that if a person wilfully trespasses upon the premises of another, and while so trespassing assaults the owner thereof, and the owner, while defending his person from such assault, inflicts an injury upon the party thus making such assault, the party thus injured cannot recover damages for the injury so received. 26 § 771. Same — Same — Duty to retreat. The court instructs the jury that if you find from the evidence that the witness A entered the defendant's store, and engaged in loud, angry, and profane language, then the defendant had the right to direct him to stop the use of such language and quit the premises ; and if you find from the evidence that, upon being requested to stop the use of improper language or to withdraw, the witness A made a move to strike the defendant with his hand, then such movement was an assault upon the defendant, although the blow may ha-ve been intercepted or failed to reach the defendant. And if you find that A did make such an offer to strike the defendant, then in that case the defendant, being upon his own premises, was not obliged to retreat, but he had the right then and there to repel such attack with a blow, using all the force necessary to cause A to cease his assault. The party assaulted in such a case is not required to use any close or nice calculation to determine just exactly the degree of force neces- sary, not overstepping such measurement a hair's breadth on either side, but he may use all such force as a reasonable, prudent man, under like circumstances of excitement and danger, would use to repel such an assault. And in case you find the defendant was justified in striking the plaintiff, A, then in that case he is not to be charged with any unusual or unlikely result which may have in fact followed the blow given in this particular case. By this is meant that if you should find that by reason of ,any 25— Norris v. Whyte, 158 Mo. 20. 26 — Norris v. Whyte, 158 Mo. 20. § 773] Assault and Batteey. 1157 peculiar physical condition existing at the time in A, which was not apparent to B [defendant], and would not be apparent to persons of ordinary observing disposition, the blow struck in this case carried with it consequences and results that were unusual and beyond those which are ordinarily to be expected from such a blow, then in that case the mere unusual severity of the consequences will not make that liability to damages in the defendant which would not have been such liability had the blow been followed by only such consequences as might reason- ably have been expected. 27 § 772. Same — Same— Degree of force justifiable. § 773.— Arkansas. The court instructs the jury that if you find from the evidence that the plaintiff, A, made an assault upon the defendant, B, with a dangerous weapon, and that B, in good faith, believed that it was necessary for him to strike A in order to prevent A from striking him with the weapon (to avoid the infliction of bodily harm upon himself) and that B used no more force than was necessary (as the situation appeared to the defendant under the circumstances) then you should find for the defendant. 28 The court instructs the jury that an assault is an unlawful attempt, coupled with present ability, to commit a violent injury on the person of another; and if you find from the preponder- ance of the evidence that, at the time defendant struck plaintiff, plaintiff was committing an assault upon him, the defendant was justified in using such force as appeared to him reasonably necessary, acting as a prudent person would under similar circumstances, to resist the assault of plaintiff, and to prevent any renewal of such assault, if such renewal could be reasonably apprehended. 29 ; The court instructs the jury that if you find from a preponder- ance of the evidence that, at the time defendant struck plaintiff, plaintiff was attempting to strike defendant, or if it reasonably 27— Norris v. Whyte, 158 Mo. 20. 29— Downey v. Duff, 106 Ark. 4. 28 — Downey v. Duff, 106 Ark. 4. 1158 Forms of Instructions. [§ 773 appeared to defendant, viewed from his standpoint alone, by words or acts of plaintiff, that plaintiff was about to make an unlawful attack upon him, in that event defendant had a right to use whatever means was necessary to protect himself from serious bodily injury; and this is the case'although it subsequently appeared that defendant used more force than was actually necessary to protect himself from serious bodily harm. 30 §774. —Indiana. The court instructs the jury that a person in repelling an assault has no right to use greater force than, under the circum- stances, he believes to be reasonably necessary for self-protection, and, if he does, he will be liable for the excessive force used. 31 § 775. — Kentucky. . The court instructs the jury that if you believe from the evidence that, at the time defendant assaulted the plaintiff, the defendant in good faith believed, and had reasonable grounds to believe, that the defendant was then and there in danger of bodily harm about to be inflicted upon him by the plaintiff, and that the defendant used no more force that was necessary, or appeared to him in the exercise of a reasonable judgment to be necessary, to protect himself from injury at the hands of plaintiff, you will find for the defendant, unless you believe that defendant brought on the difficulty by first striking plaintiff or assaulting him with a lap ring, in which event, you cannot find for defend- ant on the ground of self-defense. 32 §776. —Michigan. The court instructs the jury that the defendant was the best judge of what was necessary to defend himself against the attack, and of the means to be used for his own protection. As a technical legal proposition this is undoubtedly correct, and it is true not only as a matter of law, but as a matter of common sense, that the party attacked is obliged in the very nature of the case, to exercise his best judgment at the time as to what 30— Downey v. Duff, 106 Ark. 4. 32— Renfro v. Barlow, 131 Ky. 31 — Reichers v. Dammeier, 45 Ind. 312. App. 208. §776] Assault ■ and Batteey. 1159 shall be done in his own defense, and his judgment is one which, if honestly exercised, is to a large extent controlling. It would be absolutely controlling unless the jury should find that his exercise of it at the time and under the circumstances was such an exercise as was unreasonable under all the evidence in the case. 33 The court instructs the jury that it is proper for you also to consider, if you find that plaintiff made the first attack, that the defendant, being required to act thus, in the excitement and heat of affray, could not be expected to exercise that nice dis- cretion and accredited judgment which the jury by a careful sifting of the testimony of all the witnesses aided by the argu- ments of counsel and the charge of the court, would be able to do; and therefore his conclusion, though he acted honestly and in good faith, might not be perfectly correct and just: There- fore, this is the law, that if the defendant did use more force than is actually necessary for self-protection, if you find that he sincerely believed at the time that he was using only so much force as was necessary for his own defense, ,and if you also find that he acted honestly and in good faith in coming to that con- clusion, and if you find also from the evidence that such a belief was a reasonable belief on his part under the circumstances that surrounded him at the time and as the situation appeared to him, — then he would not be guilty of an assault by reason of the " use of such excessive violence. * * * The defendant would be justified in resorting to such reasonable force as to him seemed to be necessary in the honest exercise of his judgment to protect himself from the injury which he fully believed the plaintiff was about to inflict upon him. * * * If you find such appearance justified that belief, and defendant's judgment was honestly exercised in coming to that conclusion, he would then have a right to thus repel or prevent the actual assault, using such force, and such alone as was reasonably necessary or appeared to him as reasonably necessary at the time to protect himself. 3 * 33— Kent v. Cole, 84 Mich. 579. 34— Kent v. Cole, 84 Mieh. 579. 1160- Forms of Instructions. [§ 776 The court instructs the jury that in defending himself against an unlawful attack of another, a man is justified in resorting to such violence and the use of such force as the particular circumstances of the case may require for his protection. Now, the degree of force to be employed in protecting one's person must be in' proportion to the attack made, and must depend upon the circumstances in each particular case, and the imminence of danger as it appears to him at the time. The only purpose wBich justifies the employment of force against the assault is to defend one's self, that is the object to be attained; and a man is only justified in using such an amount of force as may appear to him at the time to be necessary to accomplish that purpose. As soon as that object is attained, it is his duty to desist. * * * If he used a kind of force towards his assailant in excess or out of proportion to what may be necessary to his own defense, as it honestly appeared to him at the time, 'he is himself guilty of an assault. 35 §777. —Missouri. The court instructs the jury that if they believe ]the defendant apprehended that plaintiff was about to do him some great bodily harm, and that there was reasonable cause for believing the danger was imminent, and that such danger was about to fall upon him, then he had a right to act on appearances and to use such force as seemed necessary to avoid the danger, and he was not required to nicely gauge the amount of force necessary to repel the assault. 36 r §778. —Texas. The court instructs the jury that violence to the person does not amount to an assault and battery when it is inflicted in self- defense, against unlawful violence offered to the person; but only that degree of force must be used which is reasonably necessary to repel the threatened violence. The danger of violence to the person, in order to justify an assault and battery 35— Kent v. Cole, 84 Mich. 579. 36— Johnson v. Daily, 136 Mo. App. 534. § 782] Assault and Battery. 1161 by any one, need not be real, but may be apparent only, provided he acted on a reasonable apprehension of danger of violence, and the circumstances must be viewed from t the standpoint of the person acting thereon at the time. 37 § 779. Same — Defense of property. , § 780. — Georgia. "Every man's house is his castle." This is an old expression and comes down to us from those feudal times when the grand people lived in large fortified houses which were called castles. In these castles they resisted any entrance except by permission. From this source has come the expression that "every man's house is his castle." In accordance therewith every man's abode however humble is his castle ; as is said ' ' even though the winds of Heaven may blow through it and the rain pour into it the King of England cannot enter it v " 38 §781. —Illinois. The jury are instructed that though plaintiff went upon the defendant's premises to transact lawful business, he had no right to remain after defendant- refused to do business with him and requested him to leave and if he refused to leave after such request defendant had the right to eject him by force provided he used no more force than was reasonably necessary. 39 §782. —Iowa. The court instructs the jury that it is conceded that plaintiff and defendant were the owners in common of an undivided lot of turkey eggs. Under those circumstance, the plaintiff had no right to destroy any of them without defendant's, consent. And if, acting under reasonable apprehension that she was about to break some of the eggs, he proceeded in good faith to prevent her from doing so, and used no more force than reasonably appeared to be necessary for that purpose, he was justified in so 37 — Sumner v. Kinney, — Tex. 39 — Woodman v. Howell, 45 111. Civ. App. — , 136 S. W. 1192. 367, 92 Am. Dee. 221. 38 — Hammond v. Hightower, 82 Ga. 290. 1162 Fobms of Instructions. [§ 782 doing, and is not liable therefor. On the other hand, if he intentionally used more than was necessary, or did not act in good faith, but, actuated by some other motive, he intentionally inflicted physical violence on the plaintiff without her consent, then he acted unlawfully, and is liable in damages therefor. 40 § 783. — Michigan. The court instructs the jury that if the plums which are the property in question in this case, belonged to the defendant, and the plaintiff was attempting to remove them without consent or lawful authority from the defendant, and they belonged or were under control of defendant, he had a right to prevent her from so doing. But in the case suggested — that is, should you find that the plaintiff had no legal right to the plums, and that the defendant was seeking to retake only what belonged to him - — he would only have had a right to use sufficient force to over- come the force used by A [plaintiff] in taking away the plums. Defendant would have no right to use more force than was reasonably necessary, under all the circumstances, to retake them; and, should you find that he did use more force than was reasonably necessary, he would be liable for such damages as were occasioned by such excessive use of force. 41 The court instructs the jury that if the plaintiff was removing the plums belonging to the defendant without lawful right, then the defendant would be justified in attempting to take them from her, and could use sufficient force to compel the plaintiff to give them up. 42 §784. —Missouri. The court instructs the jury that, while the keeping of a store for the sale of merchandise is an invitation to the public to visit such store, it is an invitation to visit it only for proper' purposes in connection with the business there being carried on, and all persons going to such places are required to conduct themselves in a proper, orderly, and quiet manner, free from profane and 40— Keller v. Lewis, 116 Iowa 369. 42 — Hamilton v. Arnold, 116 Mich. 41 — Hamilton v. Arnold, 116 Mich. 684. 684. § 788] Assault and Batteky. 1163 loud and boisterous language; and where a person, having entered a store, engages in such loud, boisterous, and profane language, or invites a quarrel, he becomes a trespasser upon the premises, and may be requested to withdraw by the proprietor or any person in his employ. And, in case such trespasser refuses to withdraw, he may be forcibly removed; using such force as may be necessary for that purpose. 43 § 785. — Nebraska. The jury are instructed that though reasonable force may be used to eject a trespasser, the use of a dangerous weapon is not justified in repelling a trespass which does not threaten injury to life or limb. 44 § 786. — Washington. The court instructs the jury that he would have a right to request her to depart, but the fact that she did not comply with the request would not justify him in making an assault. He might, after proper request, use sufficient force to put her out of the store; he would have a right to do that, but he would have no right to make an assault of the kind I have described nor an assault and battery as I have described. 45 §787. —Wisconsin. The fourt instructs the jury that a man may use reasonable and necessary force to eject a trespasser who intrudes upon his premises against his known commands, but he cannot use wanton or unnecessary violence in so doing, or he becomes liable to respond in damages to an injury which he may thereto inflict. 46 § 788. Same — Attempted escape of plaintiff after arrest for misdemeanor. The court instructs the jury that if the jury believe from the evidence that the plaintiff was violating, in the presence of the defendant, the ordinance of prohibiting loud and pro- fane swearing within the corporate limits, and the defendant not 43 — Norris v. Whyte, 158 Mo. 20. 45 — Howell v. Winters, 58 Wash. 44— Everton v. Esgate, 24 Neb. 436, 108 Pae. 1077. 235. 46— Palmer v. Smith, 147 Wis. 70. 1164 Foems of Instructions. [§ 788 being actuated by ill will, malice, hatred, or malevolent purpose, arrested the plaintiff, and the plaintiff, not being out of the control of the defendant, attempted to escape, and to prevent such an escape the defendant fired his pistol, such firing would not constitute an assault. 47 The court instructs the jury that if the jury find from the evidence that the plaintiff had violated the town ordinance against loud and profane swearing on the streets, and that the defendant had attempted to arrest him, and that plaintiff got loose and was running from defendant, and while so running defendant had shot at him with a pistol, then, in law, that would be an assault. 48 § 789. Same — Disorderly conduct of plaintiff while under arrest. The court instructs the jury that if plaintiff, while in defend- ants' custody, became violent, and used Joud, vulgar, profane, and abusive language, so as to disturb defendants and others in the vicinity, and refused to desist when requested, it was the duty of the defendants, as officers, to enforce order and prevent the continuance of plaintiff's disturbance and disorderly conduct, and to use reasonable and sufficient force to accomplish the purpose. 49 § 790. Issues and proof. The court instructs the jury that if they should believe from the evidence that the defendant did not assault the female plaintiff in the manner and form, in substance, as alleged in the petition, they should find for the defendant. 50 The court instructs the jury that if the evidence fails to show by a fair preponderance thereof that this assault, if any was committed, was unlawful, or fails to show any force pr violence was used by the defendant upon the plaintiff, then the plaintiff is not entitled to recover anything. 51 47 — Sossamon v. Cruse, 133 N. C. 50 — Eagsdale v. Ezell, 20 Ky. L. 470. Rep. 1567. 48 — Sossamon v. Cruse, 133 N. C. 51 — Kerley v. Germscheid, 20 S. D. 470. 363. 49 — McNally v. Arnold, 127 Iowa 437. § 793] Assault and Batteey. 1165 § 791. Evidence — Presumptions and burden of proof. The court instructs the jury that when an injury is caused by violence to the person, the intent to injure is presumed, and it rests with the person inflicting the injury to show the accident or innocent intention. 62 § 792. Same — Weight and sufficiency — In general. The court instructs the jury with reference to the ' complaint against A [defendant], filed before the justice of the peace of county on , 19 — , and with reference to the judgment of said justice of the peace on said complaint, that the same were admitted in evidence in this cause as any other fact in evidence; said judgment is not conclusive of defendant having committed an unlawful assault and battery upon plaintiff as charged in said complaint for the purpose of this cause, but you may consider said judgment as any other evidence in arriving at your verdict, and give it such weight and probative force as you may deem it entitled to. 53 The court instructs the jury that ybu should bear these instruc- tions in mind and consider them in connection with the evidence as to the acts and intentions of the plaintiff and his companions, so far as they were known to the defendant, as well as the character of the individual members comprising the group, and their disposition toward him, whether friendly or otherwise, so far as known to him, in determining whether or not, at the time of the shooting of the plaintiff, the defendant had reasonable ground to apprehend a design to do him or his wife great personal injury, or to commit a felony against his property, and whether he had reasonable cause for believing that there was imminent danger of such design being accomplished. 54 § 793. Same — Same — Degree of proof required. The court instructs the jury that in this action the plaintiff is only required to make out her case by a mere preponderance of 52 — Sumner v. Kinney, — Tex. 54 — Palmer v. Smith, 147 Wis. 70. Civ. App. — , 136 S. W. 1192. 53 — Sumner v. Kinn,ey, — Tex. Civ. App. — , 136 S. W. 1192. 1166 Fokms of Instructions. [§ 793 evidence, to entitle her to recover; and any of the evidence, either circumstantial 1 or positive, which induces belief, is proper to be considered by the jury in determining whether or not the defendant is guilty. 55 § 794. Questions for jury. The court instructs the jury that the only question for you to determine is whether this man did or did not use more than sufficient force for the purpose of reclaiming his property. 56 § 795. Damages — Actual damages. § 796. — Indiana. The court instructs the jury that the jury, in estimating the damages, might consider the shame, humiliation, loss of honor, reputation, or social position, if any was shown. 57 §797. —Iowa. The court instructs the jury that two kinds of damages may be allowed if it finds for the plaintiff under the other instruc- tions given; that, if the plaintiff is entitled to recover at all, he may be allowed such actual damages as will fully compensate him for medical attention, and for the mental and physical pain and humiliation inflicted upon him and that, if it finds the assault to be malicious and wanton, exemplary damages may be awarded ; but that no exemplary damages can be allowed unless actual damages are found. 58 § 798. — Kentucky. The court instructs the jury that if you find for plaintiff, you may award him such sum by way of compensatory damages, not exceeding as you believe from the evidence will fairly compensate him for any physical or mental suffering which he endured as the necessary result of his injuries, if any. 50 55 — Miller v. Balthasser, 78 111. 58 — Fleming v. Loughren, 139 302. Iowa 517. 56— Miller v. Sadowsky, 138 Mich. 59 — Kenfro v. Barlow, 131 Ky. 502. 312. 57— Kelley v. Kelley, 8 Ind. App. 606. See Timmons v. Kenrick, 53 Ind. App. 490. § 801] Assault and Battery. 1167 §799. —Maryland. The court instructs the jury that if they find for the plaintiffs, they should award such damages as will, under all the circum- stances of the case, compensate for the injury to the person and feelings suffered by A by reason of the unlawful act of the defendant, if they shall find that the defendant assaulted and struck her ; and if they further find that the female plaintiff was treated with reckless violence and indignity, then they may think proper, from all the evidence, to punish such conduct, and deter the defendant from like conduct in the future. 60 §800. —Minnesota. The court instructs the jury that they are at liberty to take into consideration the injuries, so far as they have been shown by the evidence; the pain and suffering endured by the injured party ; his loss of time, if loss of time has been proven, and 'award such damages as the jury may think proper and right in view of all the circumstances proven on the trial of this case. If you find that the injuries were inflicted wilfully and maliciously, then you are not limited to mere compensation for the actual damages sustained, but you may give such further sum by way of exem- plary damages, as an example to others, to deter them from offending in alike manner. 61 § 801. — Nebraska. The court instructs the jury that if from the evidence and instructions in the ca.se you find for the plaintiff, you will then allow the plaintiff damages in such sum as you believe, from all the evidence in the case, will actually compensate her for the injuries sustained by her, if any. You will take into con- sideration the nature, location, and extent of the injury. You will allow plaintiff the fair and reasonable amount of necessary medical services for which plaintiff may have become obligated, if anyj and for her loss of time from her occupation, if any. You will allow plaintiff damages for her mental and physical suffer- 60— Thillman v. Neal, 88 Md. 525. 61 — Gorstz v. Pinske, 82 Minn. 456, 83 Am. St. Rep. 441. 1168 Forms of Instructions. [§ 801 ing, if any such has been proved. Mental suffering and physical pain are incapable of measurement by any fixed and arbitrary rule, but must from its nature depend largely upon the judgment of the jury, governed by the circumstances of the particular case. You cannot allow damages by way of punishment. That is for the criminal law, and not for the jury in a civil case. The damages, if any allowed, must be compensatory only. 02 The court instructs the jury that where an injured party, by reason of the injuries which is the foundation of the action, has incurred necessary expenses for medical attendance, nursing, etc-., and has become liable or indebted for the payment of such expenses, the reasonable and fair valuation of such services may be recovered, although not yet paid by the party injured. 63 The court instructs the jury that if they, under the instructions' of the court, from the evidence believe that the plaintiff is entitled to recover in this action, then in assessing her damages, the jury are at liberty to take into account the character and extent of the plaintiff's injuries, so far as they have been proven by the evidence, the pain and suffering endured by her, if any, in consequence of such injury, her costs of medical attendance, if such a loss of time and costs have been proved, and where such damages as the jury may, from. the evidence, think proper and right in view of all the facts and circumstances proved on the trial. The jury can only allow actual damages by way of com- pensation. In this case damages by way of punishment are not allowed. 64 §802. —Texas. The court instructs the jury that if you find for the plaintiff under the instructions heretofore given, you will allow such damages as seem to you to be right and proper under all of the facts and circumstances in evidence. In estimating the damages you have a right to consider bodily and mental pain, 'if any, endured by the plaintiff, loss of time, if any, caused by such 62 — Kast v. Link, 90 Neb. 25. 64 — Rees v. Rasmussen, 5 Neb. 63 — Rees v. Rasmussen, 5 Neb. (Unoff.) 367. (Unoff.) 367. § 808] Assault and Battery. 1169 assault, if any; and his diminished capacity for labor, if any, — resulting directly from defendant's wrongful acts, if the evi- dence shows these circumstances to exist. You may also take into consideration the surgical bills, if any, which the plaintiff has incurred. . It was not necessary that the amount of damages resulting from personal injuries should be proved by witnesses, but it is to be determined by you from your own general knowl- edge and experience. The damages above spoken of are known as "actual damages." 65 §803. —Wyoming. The court instructs the jury that in estimating the damages which accrue from an assault and battery, it is not necessary that any specific sum should have been named or stated in the evidence. Actual damages are those which flow directly and naturally from the act complained of, and such damages, if any, which you find from the evidence, and allowed by you, shall not exceed , the amount claimed in the petition. 60 § 804. Same — Same — Mitigating facts. §805. —Missouri. The court instructs the jury that no words, however insulting or aggravating they may be, will justify an assault, and such insulting or aggravating words cannot be considered by the jury for the purpose of mitigating or reducing the amount of actual damages. 67 §806. —Texas. The court instructs the jury that no verbal provocation justifies an assault, but insulting or abusive words may be given in evi- dence in mitigation. 68 § 807. Same — Exemplary damages. §808. —Kentucky. The court instructs the jury that if you believe that defendant, not in his necessary, or to him apparent necessary, self-defense, 65 — Knittel v. Schmidt, 16 Tex. 67 — Burley v. Menefee, 129 Mo. Civ. App. 7. App. 518. 66 — Williams v. Campbell, 22 68 — Sumner v. Kinney, — Tex. Wyo. 1, 133 Pae. 1071. Civ. App. — , 136 S. W. 1192. Blashfleld Vol. 1—74 1170 Forms of Instructions. [§ 808 assaulted, bruised, or injured plaintiff, and further believe that defendant wantonly and maliciously assaulted, bruised, or injured plaintiff, you may, in addition to compensatory damages, award plaintiff punitive damages, not exceeding in all the sum of . If, however, you believe from the evidence that plaintiff gave to the defendant such provocation to assault and bruise plaintiff as would cause an ordinarily prudent man under like or similar circumstances so to assault and bruise the plaintiff, and that such provocation, if any, did prompt defendant to assault plaintiff, you may consider such provocation, if any, in mitigation of the punitive damages, if any, which you may find for plaintiff. 69 The court instructs the jury that if they believe from the evidence that the defendant' assaulted the female plaintiff [a married woman] in the manner and form, in substance, as alleged in the petition, then the jury should find for the plaintiffs such damages as they may have sustained; and the court further says to the jury that in estimating the damages, if any, sustained by the plaintiffs, they are not confined in their verdict to the actual damages, but the jury may, in their discretion, assess other and additional sums, by way of smart money, or exemplary damages, not exceeding in all the amount claimed in the petition. 70 § 809. — South Dakota. The court instructs the jury that by "malice" or "malicious" is meant a wish or desire to vex, annoy, or harass another. So it will be for you to determine whether or not, if the assault and battery was committed, it was malicious. If the evidence fails to show by a fair preponderance thereof that it was malicious, then you should not give the plaintiff any exemplary damages. If it does show, however, by a fair preponderance, that it was malicious, then the plaintiff is entitled to exemplary damages such as you deem proper under all the circumstances. You can- not find exemplary damages, however, unless you find the plain- tiff has suffered some actual damages. If you find he suffered 69— Renfro v. Barlow, 131 Ky. 70— Eagsdale v. Ezell, 20 Ky. L. 312. Eep. 1567. § 814] Assault and Battery. 1171 actual damages, then you may find for him in exemplary damages, if you find that the assault was malicious. 7 1 § 810. — Texas. The court instructs the jury that if malice has been shown by the evidence, or may be reasonably inferred from the conduct of the defendant as shown in evidence, you may, in your discretion, give exemplary damages by way of punishment to the defendant, and for the purpose of setting a wholesome example to others. 72 § 811. — Wisconsin. The court instructs the jury that, if they should find that the assault and battery was inflicted under circumstances of aggra- vation or cruelty, with vindictiveness or malice, they might award exemplary damages by way of punishment to the defend- ants. 73 §812. —Wyoming. The court instructs the jury that in addition to any actual damages (if you find that there were any), you may award exemplary damages to the plaintiff, in case you should find that the wrongful acts, if any, by the defendant causing such actual damages were committed in a wanton, willful, or reckless manner, or in case you firid such acts were committed wantonly, reck- lessly, and without due regard to the rights of the plaintiff, or if you find that wrongful acts of the defendant causing such damages were from any bad motive or so recklessly done as to imply a disregard for the obligations and rights of the plaintiff. 74 II. Criminal LiABiLrry. 75 § 813. Nature and elements of crime — In general. §814. — Alabama. The court instructs, the jury that if the defendant negligently handled the gun that inflicted the wound in disregard of the 71 — Kerley v. Germscheid, 20 S. 74 — Williams v. Campbell, 22 D. 363. Wyo. 1, 133 Pac. 1071. 72 — Knittel v. Schmidt, 16 Tex. 75 — Matters pertaining to law of Civ. App. 7. crime in general, see Criminal Law. 73— Lamb v. Stone, 95 Wis. 254. 1172 Foems of Insteuctions. [§ 814 safety of others, then he would be guilty of assault and battery with a weapon. 76 The court instructs the jury that any touching by one person of the person of another in rudeness or in anger is an assault and battery, and every assault, and battery includes an assault. 77 § 815. — Oregon. ' The court instructs the jury that an assault is an intentional attempt to do violence to the person of another, coupled with present ability to carry that intention into effect. 78 §816. Same— "To beat" construed. The court instructs the jury that ' ' to beat ' ' is not necessarily to whip, to injure, or to hurt, but includes any unlawful imposi- tion of the hands or arms. 79 § 817. Same — Insulting words. The court instructs the jury, for- the defendant, that insulting words do not constitute an assault, and if the jury believe from the evidence, beyond a reasonable doubt that A struck the defendant the first blow, and afterwards defendant , defended himself with no more force than was necessary to ward off the attack, as he had a legal right to do, then the jury must find the defendant not guilty. 80 § 818. Same — Chastisement of child by person in loco parentis. The court instructs the jury that if you believe and find from the evidence that the defendant, A, in county, and state of , within years next before the day of , 19 — , did willfully and feloniously whip B with a whip, by which said B was wounded, or disfigured, then you will find the defend- ant guilty, as she is charged in the indictment, of wounding, or disfiguring, said B by said whipping, as you from the evidence, shall believe her to have been so wdunded or disfigured. And if 76 — Crenshaw v. State, 153 Ala. 5. 79 — Ldwry v. State, 8 Ga. App. 77 — Jacobi v. State, 133 Ala. 1 379. (writ of error dismissed 187 U. S. 80 — Wicker v. State, — Miss. — , 133, 47 L. Ed. 106.) t 65 So. 885. 78— State v. Selby, 73 Ore. 378, 144 Pac. 657. § 819] Assault and Batteky. 1173 you shall believe and find from the evidence, A at said time and place, and upon such whipping, by her, of said B, and in con- tinuance by her of the punishment so inflicted upon said B by said whipping did willfully and feloniously burn said B with a hot iron stove-lid lifter, by which said B was wounded or dis- figured, then you will find the defendant guilty, as she is charged in the indictment, of wounding or disfiguring said B by said burning, as from the evidence you shall believe, and find her to have been so wounded or disfigured. If you find the defendant guilty of either wounding or disfiguring said B by either said whipping or burning, you will fix her punishment therefor at imprisonment in the penitentiary not less than years nor more than years, or at imprisonment in the county jail not less than — : — months, or at both a fine not less than dollars, and imprisonment in county jail not less than months, or at a fine of not less than dollars. 81 The court instructs the jury that if defendant struck A with a whip, or burned her with the hot stove-lid lifter with such severity as to break, cut, or burn entirely through the skin upon her body andto her flesh, then said A was wounded within the meaning of the other instruction ; and if the lick of the whip or the burns left a scar or scars, then she was disfigured within the meaning of the instructions. 82 § 819. Same— Aggravated assault — In general. The court instructs the jury that before the defendant can be convicted of an aggravated assault and battery, you must believe from the evidence that serious bodily injury was inflicted; and in case of a reasonable doubt as to whether serious bodily injury was inflicted you will give the defendant the benefit of such doubt, and acquit him. What, in law, is meant to be serious bodily injury, is such an injury as is attended with danger. 83 81 — State v. Nieuhaus, 217 Mo. 83 — Grayson v. State (Tex. Cr. 332. App.) 42 S. W. 293. 82 — State v. Nieuhaus, 217 Mo. I 332. 1174 Fqbms of Instructions. [§ 820 §820. Same — Same — On female. The court' instructs the jury that an assault becomes aggravated by indecent familiarity of the person of a female by an adult male against her will and without her consent. 84 The court instructs the jury that if defendant, an adult male, committed an aggravated assault upon A, a female person, by catching hold of the clothes of the said witness A with his left hand, and by putting his right hand under her clothing and upon her leg against her will and consent, they would find him guilty. 85 The court instructs the jury that if you believe the defendant, in the county of and state, of , at or about the time alleged in the information, committed an aggravated assault and battery upon the person of one A, and the defendant was an adult male, and the said A was a female or child, as above defined, and that the assault was committed, if in fact you find from the evidence that an assault was committed by the defend- ant upon A about the time alleged in the information, by using violence upon her, by putting his hands under her clothes and feeling her person, then you will find the defendant guilty, and assess his punishment at a fine. 86 § 821. Intent and malice — Aggravated assault on female. The court instructs the jury that if the defendant took hold of the arm of the said A, but did so- with no intent to injure her or her feelings, and had probable ground to believe, and did believe, that such taking hold of her arm would not be objected to by her, the said A, or would not be offensive to her or her feelings, then he would not be guilty of any offense, and you will acquit the defendant. 87 The court instructs the jury that if you believe from the evi- dence that A sustained bodily injury at the time alleged in the 84 — Sample v. State, 52 Tex. Cr. the court holds that the jury could App. 505. not have been misled by the use of 85 — Sample v. State, 52 Tex. Cr. the word "or" in the phrase "the App. 505. said A was a female or child." 86— Berry v. State (Tex. Cr. 87— Shields v. State, 39 Tex. Cr. App.) ^0 S. W. 984. Since the prose- App. 13. cutrix was both a female and a child § 821] Assault and Battery. 1175 information, but you further believe that said injury, if any, was not caused by any violence on the part of the defendant, and that he was at the time intending to do her no injury, or if youliave a reasonable doubt of the same, to acquit the defend- ant. 88 The court instructs the jury that if you believe from the evidence that the defendant, in the county of , and state of — , did, upon the person of A, commit an aggravated assault and battery, by making use of any violent or indecent familiarity towards or upon her, with intent to injure her, or that he indecently and violently placed his arms around her, and did make indecent proposals to and concerning her, with intent to injure ner, then, if you so believe, you will find him guilty. On the other hand, if you do not so find and believe, you will acquit him. 89 The court instructs the jury that if you believe from the evidence that the defendant did, in ■ county, , on or about the day of ; — , 19 — , on the person of A [8 year old girl] commit an assault, by making use of any violent or indecent familiarity toward or upon her, with intent to injure her, or he indecently or violently fondled her person, with intent to injure her, then you must find defendant guilty. 90 The court instructs the jury that if you believe the defendant put his arm on the back of the buggy seat, and thereby touched the prosecutrix, A; or if you believe that he took hold of her and endeavored to embrace her, but did so with no intention of injuring her or her feelings, and had probable ground to believe, and did believe, that such touching or taking hold of her, if any, or such attempt to embrace her, if any, would not be objected to by her, or would not be offensive to her, or hurt her feelings — then he would not be guilty of any offense, and you will acquit. And in passing upon this issue, you will look to all the facts and 88— Yates v. State, — Tex. Cr. 89— Stripling v. State, 47 Tex. Cr. App. — , 152 S. "W. 1064. See Car- App. 117. rel v. State, — Tex. Cr. App. — , 178 90— Hill v. State, 37 Tex. Cr. App. S. W. 831. 279, 66 Am. St. Rep. 803. 1176 Forms op Instbtjotiosts. [§ 821 circumstances in evidence, and the conduct of the parties, both before and after the commission of the alleged offense; and if you have a reasonable doubt of the defendant's guilt, or of his intent to injure the prosecuting witness, you will find him not guilty. 91 The court instructs the jury that if you believe from the evi- dence that the prosecuting witness, A, invited the defendant to visit her, at the time of the alleged assault, and that the defend- ant went to see her in response to said invitation, and that said prosecuting witness by her conduct toward and with the defend- ant was calculated to lead him to believe, and he did believe, that his visits and attentions to her were agreeable to the said prosecuting witness, and that he did not intend to do her any injury in person or to her feelings, without her consent, and if you have a reasonable doubt as to such facts, you will find the defendant not guilty. 92 The court instructs the jury that if any male adult should use any unlawful violence upon the person of a female with intent to injure her, whatever be the means or degree of violence, he is deemed guilty, under the law, of an aggravated assault and battery. 93 § 822. Same — Shooting at another. The court instructs the jury that in considering the offense of shooting at another, it is not necessary to* show either malice or the specific intent to kill. It would make no difference, if the defendant shot at the prosecutor, not in his own defense or under circumstances of justification, according to the principles of the Code, with what intent he shot him — whether to kill him or not ; and it would make no difference whether he had malice or not. 94 § 823. Ability to inflict injury. The court instructs the jury that an assault cannot be com- mitted by a person pointing in a threatening manner an unloaded 91— Stripling v. State, 47 Tex. Cr. 93— Millard v. State (Tex. Cr. App. 117.' App.) 59 S. W. 273. 92 — MeGill v. State, 71 Tex. Cr. 94 — Greenwood v. State, 9 Ga. App. 443. App. 876. § 825] Assault and Batteet. 1177 gun at another, and this, too, regardless of the fact whether the party holding the gun though it was loaded, or whether the party at whom it was menacingly pointed was thereby placed in great fear. 95 The, court instructs the jury that a person with an unloaded gun does not have the present ability to inflict an injury upon another many yards distant, however apparent and unlawful his attempt to do so might be. 96 § 824. Defenses — In general. §825. — Georgia. The court instructs the jury that if the assault made upon him, if you find one was made, did not amount to a felony, but was an assault less than a felony, such as an assault and battery, then he would not have the right to shoot at another, either as a defense for the offense of assault with intent to murder, if you find that element is in it, or as a defense for the offense of shoot- ing at another not in his own defense. If an assault was made upon him, although it was a bare assault, and did not amount to a felony, it would reduce the offense, if one has been com- mitted by the defendant, from assault with intent to murder to shooting at another; but it would not justify him in using a deadly weapon — shooting a pistol. If you find that he shot after an assault had been made upon him, and that assault amounted to a felony, then he would have the right to shoot, and he would be guilty of nothing. If you find that the assault made upon him was less than a felony — assault and battery — then that would reduce the offense if he is otherwise guilty of one, from assault with intent to murder to shooting at another; but it would not justify shooting at another if it was a bare assault. If you find • however, that the assault made upon him amounted to a felony, or that the surroundings were such as to create apprehension in his mind, as a reasonably courageous man, and not of a coward, that his life was in danger, or that a felony was about to be 95— People v. Sylva, 143 Cal. 62, 96— People v. Sylva, 143 Cal. 62, 76 Pae. 814. 76 Pae. 814. 1178 Fobms op Instructions. [§ 825 committed upon him, then he would not be guilty either of assault with intent to murder or of shooting at another not in his own defense. 97 § 826. — Texas. The court instructs the jury that both parents had an equal right to the custody of their children, and if the wife had pro- cured the custody of the child, and defendant assaulted her on that account, it was not justifiable, and that defendant would be guilty of an aggravated assault. 98 § 827. Same — Corrective purpose. The court instructs the jury that if they find from the evidence that the defendant did chastise W, but that at the time the defendant was a school teacher, and said W was his pupil, and that the chastisement was administered to him by defendant because said W had engaged in a fight at school with another pupil, or had used improper and unbecoming language, or had in any other way violated the rules and regulations of the school ; and that such chastisement was inflicted by the defendant upon said "W for the purpose of correcting him, and in good faith and without any intention on the part of the defendant to injure said W, and without any passion, spite or ill-will towards said W, then you will find the defendant not guilty, even though you should find from the evidence that the chastisement administered was more severe than was actually necessary. 99 The court instructs the jury that if the jury find from the evidence that the defendant at the time she whipped prosecutrix, A, with a riding whip, had the charge, custody, and control of said A, for the purpose of rearing, training, and educating her, and shall further find that the punishment administered with said riding whip was reasonable and moderate, and that such punishment was administered for the purpose of correcting the faults of said A, and not to gratify feelings of malice or revenge, 97 — Greenwood v. State, 9 Ga. 99 — Dowlen v. State, 14 Tex. Cr. App. 876. App. 61. 98— Whitehead v. State (Tex. Cr. App.) 31 S. W. 422. § 831] Assault and Batteby. 1179 then such whipping was justifiable, and the jury cannot find defendant guilty of any offense under the law for or on account of such whipping. 1 § 828. Same — Excessive punishment of child. » The court instructs the jury that a parent has a legal right to correct and punish a child for dis6bedience, provided such punishment is not excessive; and, in event it is excessive, that such parent would not be subject to corporal punishment by the co-parent, but would be only punishable by the law. 2 § 829. Same — Insulting words. The court instructs the jury that they mayJook to the fact, if it be a fact, that A used abusive or insulting language to B at or near the time of the difficulty, and such language may be taken in mitigation or justification of the offense, as the jury may determine. 3 § 830. Same — Self-defense — In general. The court instructs the jury in relation to the law of self- defense, that one cannot claim its benefits after he has inten- tionally put himself where he knows or believes he will have to invoke its aid. Circumstances justifying assault, in the law of self-defense, must be such as to render it unavoidable. If you believe from the evidence, and beyond a reasonable doubt, that the defendant could have avoided any conflict between himself and A without increasing the danger to himself, it was his duty to avoid such conflict and so render a resort to the law of self- defense unnecessary. 4 § 831. Same — Same — Combat by mutual consent. The court instructs the jury that if you believe from the evi- dence, beyond a reasonable doubt, that defendant and A met together and quarreled, bandying opprobrious or insulting words, and fought willingly or by mutual consent, it is immaterial which of them commenced the quarrel ; and the defendant cannot, under 1 — State v. Nieuhaus, 217 Mo. 332. 4— State v. McCann, 43 Ore. 155, 2— Cox v. State, 99 Ark. 90. 72 Pae. 137. 3 — Rogers v. State, 117 Ala. 192. 1180 Foems of Instructions. [§ 831 this state of facts, if you believe such beyond a reasonable doubt, set up the plea of self-defense. 5 § 832. Same — Same — Apprehension of danger. §833. —Oregon. The court instructs the jury that if the shots were fired at A while he was going away from the person firing the shots, and there was no apparent danger of immediate attack from A, then nothing that A. had done prior to such shooting at him would justify the person so shooting. 6 § 834. — Texas. The court instructs the jury that if the defendant believed that he was in personal danger, or in danger of serious bodily injury, and assaulted A so believing, viewing the facts from the defendant's standpoint, or if the jury have a reasonable doubt of said facts, then they should find him not guilty. 7 § 835. Same — Same — Duty to retreat. The court instructs the jury that if you believe from the evidence that the defendant was lawfully cutting off the water of A, and that, whilst so doing, he was assaulted by said A, and that said defendant reasonably apprehended that said A would do him bodily harm, then you are instructed that the defendant had the right to repel such assault by all the force he deemed necessary, and that he was not compelled to retreat from said A, but might, in his turn, become the assailant, inflicting bodily wounds until his person was out of danger. 8 § 836. Same — Defense of another. The court instructs the jury that if you find that Dr. A first made an unjustifiable assault upon the defendant, or that the defendant had grounds to believe, and did honestly believe, that Dr. A was about to do him personal injury, then the defendant had a right to use such violence as was necessary to protect himself from personal injury, but if he did what was unnecessary^ 5 — Johnson v. State, 136 Ala. 76. 7 — Marsden v. State (Tex. Cr. 6— State v. Erickson, 57 Ore. 262, App.) 110 S. W. 897. 110 Pae. 785. 8— Jackson v. Com., 96 Va. 107. § 837] Assault and Battbey. 1181 or did more than was necessary in, order to defend himself, he became and was guilty of assault and battery; and in this con- nection I instruct you that no mere words, no matter how irritat- ing or insulting, will justify an assault and battery. In regard to defendant's claim that what he did was lawful as a necessary protection of the injured man, I instruct you that if you find it to be a fact that Dr. A's presence in the operating room and his conduct therein before the assault was dangerous to the injured man, or if the' defendant had good reason to believe, and did in good faith believe, such to be the case, he had no right to begin by assaulting Dr. A; but he had the right to request, and he should have requested him, under such circum- stances, to leave the room. Then, if Dr. A refused, he should have gently laid his hand upon him, and not proceeded with greater force than might have been made necessary by resist- ance. Arid, in deciding as to what degree of force he was justified or would be justified in using in overcoming such resistance, you must take into consideration all the circumstances of the case, including the physical appearance of the two men, and any- thing else that will throw light upon that, or bring your minds to a just realization of the facts as they existed. If the defend- ant did not request Dr. A to leave the room, but assaulted him in the first instance, he did what was not necessary for the pro- tection of the injured man, and was guilty- of assault and battery. 9 § 837. Evidence — Presumptions and burden of proof. The court instructs the jury that where an injury is actually caused by violence to the person or to the feelings of a person, the intent to injure is presumed, and it rests with the person inflicting the injury to show the accident or innocent intention. The injury intended may be either bodily pain, constraint, a sense of shame, or other disagreeable emotions of the mind. 10 9 — People v. Keycraft, 156 Mich. App. 117. See Yates v. State, — 451. Tex. Cr. App. — , 152 S. "W. 1064. 10— Stripling v. State, 47 Tex. Cr. CHAPTEK LVI. ASSIGNMENTS FOR BENEFIT OF CREDITORS. § 838. Eight to make assignment in general. § 839. Assent by creditors to assignment. § 840. Delivery of property to assignee — Bond by third person. § 841. Fraud — Intent of assignor. § 842. — Illinois. § 843. — Minnesota. § 844. Same — Knowledge on part of assignee as to fraudulent intent of assignor. § 845. Same — Intent of assignee. § 846. Same — Badges of fraud — Secret agreement with assignee as to pos- session of property. § 847. — Illinois. §848. — Indian Territory. § 849. Same — Same — Incompetency of assignee appointed. § 850. Same — Same — Employment of assignor in closing up business of assign- ment. § 851. Same — Evidence — Presumptions and burdens of proof. § 852. — Illinois. § 853. — Minnesota. § 854. Same — Same — Weight and sufficiency. § 855. Mismanagement or fraudulent disposition of property by assignee. § 856. Priority of judgment debtor over assignee. § 838. Right to make assignment in general. The court instructs the jury that a debtor in failing circum- stances may assign his property for the benefit of creditors. An assignment when made in good faith, and accompanied and followed by possession of the property assigned, is warranted by law. Therefore, if the jury believe, from the evidence, that the assignment in question was made in good faith, and that the plaintiff took open and actual possession of the property, assigned, previous to the time when the execution in favor of W was received by the defendant , then the law is for the (1182) § 840] Assignments for Benefit of Creditors. 1183 plaintiff, and he is entitled to a verdict in his favor for a return of the property mentioned in the declaration. 1 § 839. Assent by creditors to assignment. The court instructs the jury that the document under which plaintiff claims in this case, provides that the assent of the creditor need not be a written assent. It is only necessary that creditors should give such assent to its provisions as will recog- nize and affirm the acceptance and possession of the property by the assignee, as made and held for their benefit and in their behalf, in accordance with the terms of the assignment. The ' acquiescence is something more than negative. It is acquiescence and consent; a state of mind on the part of the creditor who knowing the facts, gives the assignee to understand that he acquiesces in his keeping the property under the trust, and dis- posing of it accordingly. It is not necessary that the word assent should be used. It is not necessary that any legal formula should be employed. If the assignee informs the creditors of the facts, and makes a fair statement to them of the facts, exhibiting to them the deed of trust, if they want to see it, and they so conduct themselves towards him in what they say and do that he, a reasonable man, understands them to assent, and acts in good faith upon that understanding, then for the purpose of this case they must be taken to have assented. 2 § 840. Delivery of property to assignee — Bond by third person. The court instructs the jury that if they find, from the evi- dence, that the goods and chattels in question were transferred to the plaintiff, and that he was entitled to the possession thereof at the time of the execution and delivery of the instrument declared on; and if the jury further find that the plaintiff was about to take possession thereof, and that thereupon A [the assignor] procured the defendant to execute said instrument, and that A, after the execution of the same, by arrangement with the defendant, continued in possession of said goods and 1— Wilaon v. Pearson, 20 111. 81. 2 — Nutter v. King, 152 Mass. 355. These instructions were given on be- f half of plaintiff. 1184 Forms of Instbtjctions. [§ 840 chattels, then the possession of A was the possession of the defendant, and it became and was the duty of the defendant to deliver up the goods to the plaintiff, or pay the sum of money, according to the condition of said instrument. The arrangement between A and the defendant, if proved, constituted a sufficient delivery to entitle the plaintiff to recover for a violation of his agreement. 3 The court instructs the jury that the assignment, [by] A, to the plaintiff, read in evidence, bearing date day of , 19 — , entitled the plaintiff to, and gave him the right of imme- diate possession of the property enumerated in said instrument, in writing, read in evidence as against said A, and conferred on the plaintiff the right to dispose of the same to the defendant, in the manner in which he did, by instrument, in writing, intro- duced in evidence. 4 The court instructs the jury that if they find that the property enumerated in said instrument, in writing, declared on and read in evidence, was in possession of said A [the assignor], and that plaintiff was about to take possession at the time the defendant executed the same, with the consent and instance of A, and thereupon the defendant voluntarily consented to allow A to retain the possession thereof, then this was a sufficient delivery by the plaintiff to the defendant to entitle the plaintiff to recover in this action. 5 § 841. Fraud — Intent of assignor. § 842. — Illinois. The court instructs the jury that if they shall believe from the evidence, that the assignment by was made to plaintiff with the intent to hinder and delay any of his other creditors, in the collection of their debts, to enable 0, under the color thereof, to continue his business, and in possession of his property for his own benefit, then such assignment is fraudulent and void as to his creditors, and the jury should find a verdict for the defend- ant. 8 3 — Leverenz v. Haines, 32 111. 357. 5 — Leverenz v. Haines, 32 111. 357. 4 — Leverenz v. Haines, 32 111. 357. 6 — Wilson v. Pearson, 20 111. 81. § 843] Assignments fob Benefit of Ceeditoes. 1185 The court instructs the jury that if they believe from the evidence, that the assignment from to plaintiff was made with intent to hinder, delay or defraud the creditors of 0, then the verdict should be for the defendant; and in deciding upon the intent, the jury may take into consideration subsequent as well as prior circumstances, and the transactions of the parties, to explain such intent. 7 § 843. — Minnesota. The court instructs the jury that if the real object or intent of , the assignor, in making this assignment was not the one expressed on its face, but to induce, persuade or force creditors to agree and cpnsent to a compromise, which he was then attempting to make with his creditors, and to compel such creditors to accept about one-half of their claims, then and in such case, the assignment was fraudulent, and Void as to creditors. 8 The court instructs the jury that if the jury find that , assignor, made the assignment with the intent and for the pur- pose of effecting a compromise with his creditors, or for the purpose of facilitating one already commenced, then the assign- ment is void, and you must return a verdict for the defendant. 9 The court instructs the jury Jhat the only subject of inquiry for the jury (so far as the question of fraud is concerned) is the intent with which the assignment was made, and acts wholly independent of the fact of assignment cannot be considered. 10 The court instructs the jury that an assignment is not fraudu- lent because it may or even must operate to obstruct or delay creditors ; for every assignment, though made in good faith, must so operate. The jury must find that the intention of the act was to defraud creditors, and not to devote the" property assigned to the payment of debts. If there was an intention to delay creditors, it would render the instrument void, but if there was 7 — "Wilson v. Pearson, 20 111. 81. 9— Bennett v. Ellison, 23 Minn. 8 — Bennett v., Ellison, 23 Minn. 242. 242. 10— Guerin v. Hunt, 8 Minn. 477. Blashfield Vol. 1—75 1186 Forms op Instructions. [§ 843 no such intention, the necessary delay attending the execution of the trust was not material. 11 < §844. Same — Knowledge on part of assignee as to fraudulent intent of assignor. The court instructs the jury that if they believe from the evidence that , the assignor, executed the assignment with the fraudulent intent of compelling his creditors to consent . to a compromise which was attempting to make with his creditors, then the jury are instructed that such assignment will be void as to creditors, even though they believe from the evidence that plaintiff, the assignee, had no notice or knowledge of such fraudulent intent at or prior to the time he accepted the assignment. 12 The court instructs the jury that plaintiff, under this assign- ment, does not stand in the position of a purchaser for valuable consideration; and the fact (if such be the case) that he had no knowledge that it was , assignor's intention, in making the assignment, to effect a compromise with his creditors cannot cure the effect of such intention on , assignor's part. If such intention existed on — assignor 's part, at the time he executed the assignment, it is void, no matter whether plaintiff knew , assignor's intention or not, and your verdict should be for the defendant. 13 § 845. Same — Intent of assignee. The court instructs the jury that as to the assignment under which the plaintiff claims in this case, there is but a single ques- tion for you to pass upon, viz. : What- was the intent of the assignor and what was his purpose in making it? The intent with which plaintiff received the assignment is immaterial. 14 v. Ellison. 23 Minn. 11 — Guerin v. Hunt, 8 Minn. 477. 14 — Bennett 12— Bennett v. Ellison, 23 Minn. 242. 242. 13— Bennett v. Ellison, 23 Minn. 242. §848] Assignments for Benefit of Cbeditobs. 1187 §846. Same — Badges of fraud— Secret agreement with assignee as to possession of property. §847. — Illinois. The court instructs the jury that if they believe, from the evidence, that at or about the time of the assignment from to plaintiff, there was an understanding or stipulation between them, though not expressed in the assignment itself, to allow a specified sum for his services in the management of the property • assigned, and that should retain possession of the same for his own benefit, as agent for plaintiff, or otherwise, to enable him to control his business to the hindrance of his creditors, such stipu- lation or understanding is evidence of fraud, and the defendant is entitled to a verdict. 15 § 848. — Indian Territory. The court instructs the jury that, although there is a clause in the deed of assignment offered in evidence in this case which prohibits the assignee from taking charge or control of the property assigned until he had filed his inventory and bond as the law provides, yet if you believe from the evidence in this case that at the time the assignor, A, delivered the deed of assignment to the assignee, B, that he and the assignor entered into an agreement or understanding by which the assignee was to take possession of the assigned property before he filed his inventory and bond, and that the assignee, in pursuance of such understanding, did take charge of said property, either by him- self or agent, before he filed his inventory and bond, that such acts would render the assignment fraudulent and void in law, and you should find for the plaintiff or attaching creditor. And in determining whether or not there was such an agreement or understanding between the assignor, A, and the assignee, B, you have a right to take into consideration all the facts and circumstances surrounding the case ; and if you believe from the evidence, and all the circumstances surrounding the case, that 15 — Wilson v. Pearson, 20, 111. 81. 1188 Forms of Instructions. [§,848 there was such an understanding, you will find for the plaintiff or attaching creditor. 16 § 849. Same — Same — Incompetency of assignee appointed. The court instructs the jury that the assignor having the choice of his assignee without consultation ' with or consent of his creditors, must take care that he appoints a person competent to protect the rights of all parties interested under the assign- ment. If it appears that the selection of an incompetent assignee was made in order to allow the assignor to control the adminis-- tration of the estate, then the assignment will-be declared void, because such an intent on the part of the assignor would be a fraud upon his creditors and if it should appear that the assignee was incompetent in fact from any cause, but that his selection was not made from any improper motive on the part of the assignor, then the assignee would be subject to removal, and the assignment will be sustained. 17 The court instructs the jury that the business competency of the assignee is only material, so far as it tends to establish an intention on the part of the assignors to retain control over the property by reason of want of competency, and if the jury fail to find that such was the design of the assignors in the selection of , it is immaterial what were his business qualificatibns. In the absence of such fraudulent intention on the part of the assignors the only effect of such incompetency would be to render the assignee liable to removal on the proper application of a creditor. 18 The court instructs the jury that incompetency in an assignee, which in law would amount to a "badge of fraud," and which would tend to invalidate an assignment, is not merely a want of ability to read or write, or of the accomplishments taught -in schools, but it also implies that the assignee is wanting in the capacity to manage and conduct the ordinary business of the assignment, and that the assigned estate must suffer neglect or 16 — Badgett v. Johnston-Fife Hat 17 — Guerin v. Hunt, 8 Minn. 477. Co., 1 Indian Terr. 133. 18 — Guerin v. Hunt, 8 Minn. 477. § 853] Assignments foe Benefit of Cbeditoes. 1189 be managed by the assignee as the instrument or tool of the assignors, for their benefit, and in fraud of the rights of creditors. 19 § 850. Same — Same — Employment of assignor in closing up busi- ness of assignment. The court instructs the jury that the employment by the assignee of one of the assignors in closing up the business of the assignment is not inconsistent with the objects of the trust, and is not necessarily indicative of a fraudulent intent in making the assignment. The jury will judge from the facts in the case whether the object was for the assignor still to retain the con- trol over the goods, in connection with the question as to the original intent of the assignor in making the assignment. 20 § 851. Same — Evidence — Presumptions and burden of proof. § 852. — Illinois. The court instructs the jury that actual fraud is not to be presumed, but should be proven by the party alleging it. The law presumes that good faith controls business transactions; therefore, if the jury believe, from all the circumstances in evi- dence, that the nature and design of the assignment to plaintiff were bona fide, to secure and ]3ay (after paying the just and reasonable expenses attending the executing the trust), the net proceeds of the property assigned in and toward the payment of the debts of 0, and that said assignment was not contrived, as a fraud on the part of and the plaintiff, to cheat or hinder the creditors of 0, the law is for the plaintiff; if the jury shall also find that the assignee took possession of the property, and that such possession was continued to and at the time of the levy. 21 §853. — Minnesota. The court instructs the jury that the deed of assignment being in due form and regular on its face, fraud will not be pre- 19 — Guerin v. Hunt, 8 Minn. 477. 21 — Wilson v. Pearson, 20 111. 81. 20 — Guerin v. Hunt, 8 Minn. 477. (Plaintiff's instruction.) 119ft Forms of Instructions. [§ 853 sumed with reference to it, but the burden of proof is on the defendants to show it fraudulent. The presumption is that the deed was made in good faith and that, it is untainted with fraud. 22 § 854. Same — Same — Weight and sufficiency. The court instructs the jury that if they shall find, from the evidence, that the assignment in question was in fact made by to plaintiff, and that plaintiff entered into and took open, actual and exclusive possession of the goods assigned, then the subse- quent declarations and actions of plaintiff, introduced in evi- dence in this suit, and the subsequent declarations and actions of 0, can only be taken into consideration by the jury, for the pur- pose of determining the intent at the time of the inception of the assignment, viz., whether such assignment was made with intent to hinder or delay creditors of 0, and enable him, under cover thereof, to carry on business. 23 § 855. Mismanagement or fraudulent disposition of property by assignee. The court instructs the jury that if an assignment is bona fide, and not shown to be fraudulent as to creditors, then neither mismanagement nor fraudulent disposition of property under an assignment, by an assignee, can affect the instrument, or his title under if; they may be grounds for a removal by a court of equity, but cannot be inquired into in an action at common law, brought to try his title to the property assigned. 24 The court instructs the jury that the mode of management of the trust by the assignee does not of itself affect the assignment. If it was valid at its inception, the acts and conduct of the par- ties subsequent to the assignment are only material, as they serve to throw light upon the question of the original intent in making the assignment. 25 § 856. Priority of judgment debtor over assignee. The court instructs the jury that if they find, from the evi- dence, that after the alleged assignment to plaintiff, and after 22 — Guerin v. Hunt, 8 Minn. 477. 24 — Wilson v. Pearson, 20 111. 81. 23— Wilson v. Pearson, 20 111. 81. 25— Guerin v. Hunt, 8 Minn. 477. § 856] Assignments for Benefit of Ceeditoes. 1191 the levy of the execution in favor of "W by the defendant, and possession taken by him, the debtor and assignor, 0, confessed a judgment in favor of plaintiff for the amount of a claim owing to plaintiff, and that plaintiff thereupon caused execution to be issued, and directed a levy upon the assigned property to be made by defendant, and that the said judgment was so confessed, and execution was so levied with the intent to abandon said assign- ment, then the levy under the execution in favor of W acquired a priority of lien over the goods in question, and the jury should find for the defendant. 26 The court instructs the jury that if they shall find from the evidence, that the assignment in question was bona fide, then, unless it is also shown by the evidence that the assignee, the plaintiff, did take actual and exclusive possession of the goods before the levy by defendant under the execution in favor of W, the verdict should be for the defendant. 27 26— Wilson v. Pearson, 20 111. 81. . 27— Wilson v. Pearson, 20 111. 81. CHAPTER LVII. ASSUMPSIT. § 857. Money had and received. § 858. Money paid. § 857. Money had and received. The court instructs the jury that the ' plaintiffs may recover in this suit, if the jury believe, from the evidence, that the de- fendant had in his possession, when this suit commenced, money which, in equity and good conscience, belongs to the plaintiffs; and if the jury believe, from the evidence, that said defendant received the proceeds of the grain described in the declaration, and that said grain belonged to the plaintiffs, then the jury will find for the plaintiffs ; and if the jury so believe, and believe from the evidence, that said defendant promised to pay to the plain- tiffs the money in controversy in this case, then the jury will find for the plaintiffs. 1 The court instructs the jury that if they believe, from the evi- dence, that the defendant R promised to pay the plaintiffs the proceeds of the sale of the mentioned in the first above instruction, then the jury may take this fact into consideration in determining whether the defendant R received the proceeds for the sale of said , and the jury will find for the plaintiffs if they so believe that he received the proceeds of the same. 2 §858. Money paid. The court instructs the jury that if they believe from the evi- dence that (the defendant proposed to give the sum of to relieve his township from a draft and upon the condition that his sons should be relieved from liability to draft, and if the jury 1— Beichwald v. Gaylord, 73 111. 2 — Reichwald v. Gaylord, 73 111. 503. 503. (1192) §858] Assumpsit. 1193 believe from the evidence that plaintiff on the faith of that prom- ise expended time and money for the purpose of relieving the township from liability to draft and succeeded, and by his efforts relieved the sons of the defendant from liability to be drafted into the military service of the United States, then the jury should find for the plaintiff for the sum of ). 3 3— Wilson v. McClure, 50 111. 366. CHAPTER LVIII. ATTACHMENT. § 859. Grounds for attachment — Nonpayment of debt — Implied agreement as to time for payment. § 8G0. Same — Nonresidenee of debtor — Temporary absence. § 861. Same — Transfer of property. § 862. — Indiana. § 863. — Texas. § 864. Property subject to attachment — Property remaining in possession of debtor after sale. § 865. Interpleader — Effect of possession by, or right of possession of inter- pleader 's agent. § 866. Same — Mortgagee of property. § 867. Same — Purchaser of property. § 868. Beplevin — Purchaser of property. § 869. Same — Evidence — Burden of proof. § 870. — Florida. §871. —Illinois. § 872. Wrongful attachment — When action lies. § 873. Same — Evidence — Burden of proof. § 874. Same — Damages — Actual damages. § 875. — Alabama. if you find, from the evi- dence, that the plaintiff was not about to remove permanently from the state, that he did not intend to give up his residence in this state, and take up a residence in another state, then al- though the defendant A honestly believed that the plaintiff was about to remove permanently from the state, and had probable cause for such belief, still he would be liable to the plaintiff, if there was no other cause for attachment. 27 §873. Same — Evidence — Burden of proof. The court instructs the jury that if they believe from the evi- dence that the attachment sued out by defendants against the plaintiff, the day of , 19 — , was sued out with suffi- cient cause, then the jury will find a verdict for the defendants ; and the burden of showing the absence of sufficient cause rests upon the plaintiff. 28 §874. Same — Damages — Actual damages. §875. —Alabama. The court instructs the jury that the elements of actual dam- ages, as claimed in this ease, are damages to the goods, attor- ney's fee in attachment suit and in contest of exemptions, and in loss of credit and business, and they must look to the evidence for the amount of these damages. 29 § 876. — Michigan. The court instructs the jury that it is not denied but what these notes were made by A, and you will recall that there was 25 — "Wrongful attachment by land- 28 — Offterdinger v. Ford, 92 Va. lord, see Landlord and Tenant. 636. 26— W. F. Vandiver & Co. v. Wal- 29— W. F. Vandiver & Co. v. Wal- ler, 143 Ala. 411. ler, 143 Ala. 411. 27— Troy v. Rogers, 113 Ala. 131. § 876] - Attachment. 1203 a stipulation here which reduces the amount of these notes at the present time to $ . The amount is reduced by certain costs and by the amount of the so-called B notes which were assumed and taken as payment by C, the plaintiff in the case. This attachment was taken out upon the day of , 19 — , and defendant A was served with a copy on the day of , 19 — •, in county, this state. He then had notice of issuing of the writ, of course, and of the fact that the officer had taken possession of these potatoes; and then on the day of -' he came into this court and made a motion to dissolve that writ of attachment. "When a party claims that a writ is issued without proper cause, he has a right to go into court, and he may go to a circuit court commissioner, and make a motion to dissolve the attachment upon the ground that it was improperly issued. That was done, in this case, upon the day of , 19 — , and it seems that the motion was to come on here on the day of , following, for hearing, and that upon that day the parties met here and a stipulation was agreed upon and signed by the attorneys, which I have read to you. After that the defendant did amend his plea by adding notice that he had been injured by the levying of this attachment upon certain real estate and upon the potatoes in question, and that there was a loss of bushels by decay worth cents a bushel; also, that upon the remainder, bushels, he had suf- fered a loss of cents per bushel on account of the decline in the market price, the price falling between the days of the levy and the date of the release. It seems that I am in error about that claim. I see that what they claim is that they are entitled to recover. the highest market value between the time of the levy and the time of the release on the of , and if you find that the defendant is en- titled to recover, I instruct you that that is the correct measure of damages. Where one person takes wrongful possession of the personal property of another, he is entitled to recover the highest market value of that property during the time that he was de- prived of it. 1204 Fobms of Instktjctions. [§ 876 If you are satisfied, gentlemen of the jury, from the pre- ponderance of evidence in this case, that the defendant is en- titled to recover damages because of this attachment having been, improperly issued and levied upon his property, then I give you as a measure of damages, as follows: The defendant is to be allowed his actual damages arising from' such attachment, and for that reason I have already said to you that I withdraw from your consideration of any alleged loss on account of his being unable to sell this real estate. It is too uncertain, in view of all the testimony in the case — in view of the fact that you cannot compel any man to carry out a trade in real estate unless you have it in writing, and there is no evidence here of any of those alleged arrangements being in writing, so that A could not compel the other parties to have carried them out. He is entitled to recover actual damages to the potatoes levied upon under the attachment, and, as you have heard, he claims bushels total loss, at cents per bushel, and also for the depreciation of the bushels at cents a bushel, according to his evidence-. Of course it devolves upon him to es- tablish the damage — if you are satisfied he is entitled to recover by a preponderance of evidence, as well as the other facts neces- sary to his recovery, he must establish the amount he is entitled to recover. If you find the facts claimed established by him by a preponderance of the evidence under the instructions I have already given you, then I instruct he is to be awarded such actual damages as you find he has suffered in that regard, as a direct and proximate result of such levy under said attachment. I am also requested to instruct you, and do, that the defendant is only entitled, in case he is entitled to recover to such damages as is shown by the evidence to have proceeded directly from the levy of such attachment, but not such as may have arisen from the acts of the defendant himself. That is true. If you find that the defendant placed these potatoes in question in storage with the purpose of retaining them for a very much advantageous market or for a rise in price, and was not prevented by reason of the attachment from disposing of them at a time when he could § 877] Attachment. 1205 have disposed of them to the best advantage, then he is not entitled to offset that claim. In no event can, you find damages in this case in favor of the defendant for more than $ . In other words, you cannot, as in an ordinary action where there is an offset in assumpsit, give judgment for the balance which you find in excess is due to the defendant, or in case of what we call recoupment, but you can only take into consideration the damages up to the amount of the present claim of the plaintiff in this case $ , and you have nothing to do with the balance. And your verdict in that case would be no cause for action, if you should so find. 30 § 877. Same — Same — Exemplary damages. The court instructs the jury that if they believe from the evi- dence that the suing out of the attachment was wrongful, as it has been defined by the court, and that the attachment was issued without probable cause, punitive as well as actual damages can be recovered, though the attachment is sued out by an agent, if the principal, with full knowledge, ratified the act of the agent. 31 30— Brown v. Spiegel, 167 Mich. 31— W. F. Vandiver &'Co. v. Wal- 645. ler, 143 Ala. 411. CHAPTEE LIX. ATTORNEY AND CLIENT. I. Retainer and Authority. § 878. Existence of relation, in general. § 879. Conduct of litigation. § 880. — Michigan. § 881. — New York. § 882. Compromises, settlements and releases. §883. —New York. § 884. — Tennessee. § 885. Notice to attorney. § 886. — Michigan. § 887. — Mississippi. § 888. — Texas. § 889. Delegation of authority by attorney. § 890. Ratification by client. § 891. — Illinois. § 892. — Indiana. II. Duties and Liabilities or Attorney to Client. § 893. Good faith. § 894. — Arkansas. § 895. — New York. § 896. Learning, skill, care and diligence. § 897. — In general. § 898. — Maryland. § 899. — Michigan. §900. —New York. § 901. Failure of attorney to defend suit. § 902. Joint adventure between attorney and client. III. Compensation and Lien of Attorney. § 903. Eight to compensation — In general. § 904. Same — Necessity that benefit result from services. § 905. — Alabama. § 906. — Indiana. § 907. — New York. § 908. , Eight to lien— In general. (1206) § 878] Attorney and Client. 1207 § 909. Parties liable for compensation — In general. § 910. Same — Corporation. §911. Set-off. §912. —Illinois.' § 913. — Texas. § 914. Actions — Issues and proof. § 915. Same — Evidence — Burden of proof — Contract. § 916. Same — Same — Same — Fraud in procuring execution of contract. § 917. Same — Same — Same — Special contract relied on as defense. § 918. Same — Same — Weight and sufficiency — Want or failure of consideration . for note. § 919. Same — Same — Same — Value of services. § 920. Same — Same — Questions for jury. § 921. Same — Same — Measure of recovery. § 922. — In general. § 923. — Arkansas. §924. — Illinois. § 925. — Minnesota. § 926; — Missouri. § 927. — Texas. Cross-Reference. Embezzlement by attorney, see Embezzlement, § 2844. I. Retainer and Authority. § 878. Existence of relation in general. The court instructs the jury that if you find from the evidence in this case that the defendants, as attorneys, were employed by A to assist him in negotiating a purchase of the land named in the complaint, and to look up and pass upon the title thereto, and that at the time the defendants were so employed, and per- formed the work of looking up the title to said land, they had no knowledge or information that said A was acting as the agent of the plaintiff, B, then I instruct you that the relation of attor- ney and client did not exist as between the plaintiff and these defendants, or either of them, in connection with such employ- ment, and your verdict should be for the defendants. 1 1 — Curry v. Butcher, 37 Ore. 380, 61 Pac. 631. 1208 Fobms of Instructions. [§ 879 § 879. Conduct of litigation. §880. —Michigan. The court instructs the jury that when one puts his case against another into the hands of an attorney to be prosecuted to judg- ment, it is a reasonable presumption that the authority he intends to confer upon the attorney includes such action as the latter may decide to be legal, proper and necessary in the prosecution of the demand, and that consequently whatever adverse proceed- ings may be taken by the attorney are to be considered, so far as they affect the defendant in the suit, as approved by the client in advance, and therefore as his act, even though they prove to be unwarranted by the law. 2 § 881. — New York. The court instructs the jury that when a demand is placed in the hands of an attorney for collection, he has authority to de- termine what proceedings he will take and in making such de- termination and acting thereon, he binds his client, whether the proceeding was one in which the services of the attorney were absolutely essential or not. 3 §882. Compromises, settlements and releases. §883. —New York. The court instructs the jury that the ordinary employment of an attorney at law does not authorize him to compromise or re- lease a claim, settle a suit, or alter the terms of his client's con- tract. 4 §884. —Tennessee. The court instructs" the jury that if they believe from the evi- dence that the defendant's husband purchased the land involved in this suit, for the benefit of his wife, at a time when the hus- band was free from debt, and on suit being brought by the husband 's creditors to set aside the conveyance as being in fraud of their rights, the attorney for defendant, believing that the 2— Foster v. Wiley, 27 Mich. 244, 4— Mandeville v. Reynolds, 68 15 Am. Eep. 185. N. Y. 528. 3— Poucher v. Blanohard, 86 N. T. 256. § 891] Attobney and Client. 1209 defendant had no valid defense, agreed to a compromise and con- sented that a decree should be rendered against the defendant, and if the jury believe from the evidence that the defendant did not consent to such compromise, then the jury are instructed that such compromise cannot stand. 5 §885. Notice to attorney. § 886. — Michigan. The court instructs the jury that knowledge or notice obtained by an attorney of matters in which he is not acting professionally for his client, is not imputable to the client. 6 §887. —Mississippi. The court instructs the jury that notice to the attorney of a purchaser of land, on paying for the same, that the wife of the grantor claimed the property, is notice to the purchaser. 7 §888. —Texas. The principle that a client is chargeable with notice given to his attorney does not necessarily extend to charging a man who consults an attorney about the title to land with all the knowl- edge which such attorney may possess on the subject. 8 § 889. Delegation of authority by attorney. The court instructs the jury that an attorney employed to prosecute a suit in the absence of direction from his client, cannot delegate his authority as such to another attorney. 9 §890. Ratification by client. §891. -^Illinois. The" court instructs the jury that while an attorney must have a special authority in order to compromise a suit, yet an v unau- thorized settlement by an attorney will become valid upon rati- 5— Mathews v. Massey, 63 Tenn. 8— Meuley v. Zeigler, 23 Tex. 88. (4 Baxt.) 450. 9 — Morgan v. Eoberts, 38 111. 65; 6 — Larzelere v. Starkweather, 38 Buckley v. Buckley, 64 Hun (N. Y.) Mich. 96. 632. 7 — Edwards v. Hillier, 70 Miss. 803. 1210 Forms op Instructions. [§ 891 fication; and such ratification may be inferred from knowledge, acquiescence and acceptance of the benefits. 10 § 892. — Indiana. The court instructs the jury that if they believe from the evi- dence (that A acting as attorney for plaintiff agreed with de- fendant to pay a sum of money to the defendant, and that the defendant at the same time was to execute a deed to the plaintiff and that this payment of money and execution of the deed was to be in settlement of all matters in controversy between plain- tiff and the defendant, and if the jury believe from the evidence that the money was paid to defendant in pursuance of such agreement and that the defendant executed the deed in pursuance of the agreement, and that the plaintiff accepted the benefits of the agreement and accepted the deed made in pursuance thereof, and took possession of the land, and if the jury believe from the evidence that the want of authority of A to make the agreement was not known to the defendant, then the plaintiff's acceptance of the benefits of the contract, if he did so accept, constitutes a ratification of the act of his attorney in making the agreement). 11 II. Duties and Liabilities op Attorney to Client. § 893. Good faith. §894. — Arkansas. The court instructs the jury that attorneys, in dealing with their clients, are required to exercise the highest order of good faith and to disclose to them all. information in their possession as to the material facts of the case which would or might influence the client in entering into or refusing to execute the contract in the issue. 12 §895. —New York. The court instructs the jury that it is the duty of an attorney towards his client that he shall not use any information which 10— Wetherbee v. Fitch, 117 111. 12 — Weil v. Fineran, 78 Ark. 87. 67. 11 — Travellers' Ins. Co. v. Patten, 119 Ind. 416. § 898] Attobney and Client. 1211 he has derived from his client to the prejudice or injury of his client, and that he shall not act in opposition to his client's in- terests. 13 § 896. Learning, skill, care and diligence. §897. —In general. The court instructs the jury that an attorney must employ in his undertaking a reasonable degree of care and skill, for the want of which he must respond in damages to the client to the extent of the injury sustained, but that the attorney is not liable for every mistake that may occur in practice. If he acts with a proper degree of attention, with reasonable, care and to the best of his skill and knowledge, he will not be held responsible. 14 § 898. — Maryland. The court instructs the jury that if they find from the evi- dence in this case that the plaintiff became surety for P and. W, who were the principal debtors, on the bond read in evidence, and that afterwards judgments were obtained in the court of county against the parties to the said bond ; and that at the time of the entering of the said judgments the said P was utterly insolvent and is still insolvent, but that the said "W was and still is solvent and fully able to pay and satisfy the said judgments, and further find that the said plaintiff then applied to and retained the defendant as 'his attorney and counsellor, as to his liabilities and rights as said surety on the said bond, and if the jury further believe from the evidence that at the time of the said retainer and application, the defendant was an attorney at law, admitted to practice in the said court and where the said judgments were of record; and that being retained by the said plaintiff for the parties above mentioned, the defendant in respect to the liabilities and rights of the said plaintiff, under the law, as such surety, advised him that he was responsible for the one-half of the money represented in and by the said judgments ; and that 13— Hatch v. Fogerty, 33 N. Y. 151; Wilson v. Euss, 20 Me. (2 App.) Super. Ct. (1 Jones & S.) 166. 421. 14 — Stevens v. Walker, 55 111. 1212 Forms of Instructions. [§ 898 he could not avoid losing the one-half of the said sum of money; and also advised him to pay the one-half of the said sum of money ; and to execute and deliver to the said W the release read in evi- dence, and also further find that the said plaintiff acted upon the said advice and in pursuance thereof paid the one-half of the said money and executed and delivered the release read in evi- dence, then the plaintiff is entitled to recover provided the jury further find that the advice given and acted upon by the said plaintiff was not such advice as an attorney of ordinary skill, pru- dence, and intelligence would or ought to have given. 15 , §899. —Michigan. The court instructs the jury that an attorney is not an insurer of the result in a case in which he is employed, without a special contract to that effect, nor can more than ordinary skill, care and diligence be required of him without such contract ; and where an attorney has acted in good faith, and with a fair degree of intel- ligence, in the discharge of his duties under the usual implied contract, any error which he may make must be so gross as to render wholly improbable any disagreement among good lawyers as to the manner of the performance of the services in the given case, before the attorney can be held responsible. 16 §900. —New York. The court instructs the jury that besides the fidelity an attor- ney owes to the interests of his client, he must also have sufficient learning to determine, with reasonable accuracy, upon the ap- propriate remedies for enforcing or securing the rights of his client, and sufficient skill to conduct the proceedings appropriate to such remedies. 17 § 901. Failure of attorney to defend suit. The court instructs the jury that if they believe from the evi- dence that defendant was employed by plaintiff to defend the 15 — Cochrane v. Little, 71 Md. 17 — Hatch v. Fogerty, 33 N. Y. 323. Super. Ct. (1 Jones & S.) 166. 16— Babbitt v. Bumpua, 73 Mich. 331, 16 Am. St. Rep. 585. § 903] Attorney and Client. 1213 suit described in the declaration and that defendant failed to de- fend the suit and by reason of such failure judgment was ren- dered against the' plaintiff, then before the defendant can be made liable for the whole amount of the judgment recovered against the plaintiff, the jury must believe from the evidence that the defendant was made aware of the nature of the defense he was expected to make in the suit described in the declaration. 18 § 902. Joint adventure between attorney and client. The court instructs the jury that while the law is, that dealings between attorney and client, resulting in advantage to the former, will be closely scrutinized, and the attorney be required to show the utmost good faith and fairness, and that the client dealt with •full knowledge of his rights, the law does no£ prohibit all deal- ings between the attorney and client or declare all contracts made by the attorney with the client ipso facto void, or voidable at the instance of the client, and if the jury believe from the evidence that (the plaintiff with full knowledge of all the facts entered into a joint venture with the defendant, his attorney, and that the defendant acted in perfect good faith, then the defendant will not be required to account to the plaintiff for defendant's share of the profits derived as a result of "the joint venture). 19 III. Compensation and Lien op Attorney. §903. Right to compensation — In general. The court instructs the jury that if you find that the plaintiff performed certain legal services for the defendant with the de- fendant's knowledge and consent, and that defendant received the benefits thereof without objection, then plaintiff will be en- titled to recover the reasonable valve of such services, unless de- fendant has established by a fair preponderance of the evidence that they were performed under a contract made by him with A, by which A agree that plaintiff should perform the said serv- ices, and the value thereof should be indorsed upon an indebted- 18 — Grayson v. Wilkinson, 13 19 — Eolfe v. Rich, 149 111. 436, Miss. (5 Smedes & M.) 268. aff'g 46 111. App. 406. 1214 Foems or Instbuctions. [§ 903 rtess which was then owing by A to the defendant, and that the plaintiff had knowledge of such agreement. 20 § 904. Same — Necessity that benefit result from services. §905. — Alabama. The court instructs the jury that, the law is that when plain- tiffs were employed and entered upon their employment in the case of , their duty was a vigilant prosecution of the rights of in that litigation. If you believe from the evidence they were employed by defendant, it is immaterial what benefit the defendant derived from the services rendered by them in this cause in the prosecution of the rights of said . If said services were not procured by said defendant, it is not liable to plaintiffs in this case. 21 §906. —Indiana. The court instructs the jury that the mere fact, if it be a fact, that the litigation between A and B did not result to such ad- vantage to A as he may have hoped it might, does not preclude the right of'C to recover in this, action. If A employed C to prose- cute that suit, and if C honestly and faithfully discharged his duties in that behalf, he is Entitled to be paid for his services, if he has not been paid, although the litigation terminated to the dissatisfaction and detriment of A. 22 §907. —New York. The court instructs the jury that if they believe from the evi- dence that the plaintiff as attorney was employed by the defend- ant to conduct the litigation described in the complaint and that the plaintiff gave the advice alleged in the complaint and pur- sued the proceedings therein described for the purpose of attain- ing the ends of his employment, then although the litigation instituted by plaintiff on behalf of defendant was unsuccessful, 20 — Hudspeth v. Yetzer, 78 Iowa 22 — Blizzard v. Applegate,. 77 Ind. 11. 516. 21 — Humes v. Decatur Land Im- provement & Furnace Co., 98 Ala. 461. § 909] Attoekey and Client. 1215 the court instructs the jury that the advice' given and the course pursued by plaintiff did not indicate a lack of ordinary skill and capacity so as to deprive plaintiff of the right to compensation. 23 The court instructs the jury that an attorney is not required to insure a client as to the ultimate result of the proceedings which he has advised, nor is the client justified in refusing to compensate him because in the subsequent development of affairs, it appears that a course other than that adopted would have resulted more advantageously for the client. 24 § 908. Right to lien — In general. The court instructs the jury that the plaintiff, L, managed the case of on behalf of defendant, and defendant knew that he was managing it. There is no pretense that he objected to the managing of that suit by L; and he knew that the suit was commenced; that he had a suit in this court against the company, in which L was his attorney. It is denied that he ever employed him to do it so as to make himself liable to pay him his fees, but it is not denied that he knew he was doing it. There is no pretense that L was representing a name which he had no right to represent. He was not doing wrong to de- fendant then, in managing that suit and prosecuting it to com- pletion. Judgment was rendered which produced the money for which defendant sued. Now, I say to you, as a matter of law, that as soon as that judgment was rendered, whoever might be the owner of the judgment, L had a lien upon it for the amount of his fees and disbursements in the case. It was money he had a lien upon, so that whatever he is entitled to collect from , he is entitled to take out of the money that was re- ceived upon that execution. 25 • §909. Parties liable for compensation — In general. The parties making the contract by which plaintiffs' services in the case of were procured, if you find such contract 23— Bowman v. Tallman, 27 .How. 25— Lindner V. Hine, 84 Mich. 511. Pr. (N. Y.) 212. 24-^Harriman v. Baird, 6 App. Div. (N. Y.) 518. 1216 Foems of Instructions. [§909 was made, are alone' liable to plaintiffs for their fee in said cause. 26 The court instructs the jury that, however valuable the services of plaintiffs, for which this suit is instituted, may have been to the defendant, yet plaintiffs cannot recover of said defendant unless they were employed by it in the suit in which such services were rendered. 27 The court instructs the jury that, notwithstanding the defend- ant may have been benefited by the services rendered by plain- tiff in the case of , if you believe such to be a fact, yet the jury is not authorized to go beyond the parties making the contract by .which such services in such cause were procured in search of an implied promise to pay for such incidental benefit. 28 The court instructs the jury that, so far as the liability of this defendant is concerned it makes no difference what plaintiffs un- derstood as to the defendant being liable to them for their fee in said case of . If you believe from the evidence that plaintiffs' services in said cause of were not procured by the defendant; then this defendant is not liable to plaintiffs for their services in said case, and your verdict should be for the defendant. 29 §910. Same — Corporation. 30 The court instructs the jury that if you believe from the evi- dence that both G the president of the defendant company and the defendant were interested in the property involved in the liti- gation of G v. and that G individually employed plain- tiff to press an interpretation of the contract involved in said suit favorable to the interest of said G and said defendant, and 26 — Humes v. Decatur Land Im provement & Furnace Co., 98 Ala, 461. 27 — Humes v. Decatur Land Im provement & Furnace Co., 98 Ala 461. 28 — Humes v. Decatur Land Im provement & Furnace Co., 98 Ala 461. 29 — Humes v. Decatur Land Im- provement & Furnace Co., 98 Ala. 461. 30 — Liability of bank on contract by president with attorney, see Banks and Banking, § 996. § 913] Attorney and Client. 1217 that plaintiff was not at the same time employed by said defend- ant in said cause, then this was G's individual act, — G's individual contract, — and the defendant would not be liable to ^plaintiff therefor. 31 The court instructs the jury that, if you believe from the evi- dence that plaintiff was employed by G the president of the , defendant company, in the case of G v. and the defend- ant company was in like interest with said G in the result of the litigation of the case of G v. , and that said defendant was benefited by the services rendered by plaintiff in said cause, yet there is no rule of law which fastens the liability upon said defendant for any part of plaintiff's fee in said case unless plain- tiff was employed therein by said defendant company. 32 § 911. Set-off. §912. — Illinois. The court instructs the jury that, if they believe from the evidence that the defendant has proved the items claimed by him as a set-off, then the jury, if they find that the defendant is in- debted to the plaintiff, should deduct from the claim of the plain- tiff such sum as the jury may from the evidence believe has been proven; and if the jury further believe from the evidence that the items of set-off claimed by the defendant ; — , exceed in amount the sum claimed by the plaintiff, then the jury should find a verdict for the defendant for such sum as the> evidence shows that the defendant has proved himself entitled to recover from the plaintiff over and above the just claim of the plaintiff against the defendant. 33 §913. —Texas. The court instructs the jury that if you, the jury, do not find that the firm of A & B, or that A, for said firm, told C that they 31 — Humes v. Decatur Land Im- aff'g 46 111. App. 406. In the above provement & Furnace Co., 98 Ala. instruction, it would be error to re- 461. quire the defendant to show the 32 — Humes v. Decatur Land Im- amount of his claim to the satisfac- provement & Furnace Co., 98 Ala. tion of the jury, as this imposes a 461. higher degree of proof than the law 33— Eolfe v. Rich, 149 111. 436, requires. Blashfield Vol. 1—77 1218 Foems op Instbuctions. [§ 913 would take the two D notes for collection for a fee of per cent., and you do not believe that plaintiff and the said A & B had a contract for an equal division of the amount collected on said notes, then I instruct you that under the law the said A & B will be entitled to receive a reasonable compensation for their services rendered plaintiff for the collection of the entire amount, collected and uncollected, against D, as appears from the evi- dence before you, and no more ; and if the sums already collected and appropriated by them exceed such reasonable compensation, then plaintiff will be entitled to a verdict against the said A & B for such sums as were so collected and appropriated in excess of such reasonable compensation, together with interest. 34 §914. Actions — Issues and proof. The court instructs the jury that if you find from the evidence that plaintiff performed any services for defendant in and about the estate of her brother B, deceased, but that such services were not legal services, but were business transactions only, then you will not be warranted in considering the expert testimony adduced on the trial in this case, tending to show the value of legal services as such. 35 The court instructs the jury that if the jury believe from the evidence that defendant did not employ plaintiff as a laWyer to perform the alleged services in question, then plaintiff cannot re- cover and your verdict must be for the defendant. 36 §915. Same — Evidence — Burden of proof — Contract. The court instructs the jury that the burden is on the plaintiff to show by a preponderance of the evidence that the defendant entered into the contract with him on which this action is based and for the breach of which he asks for damages. 37 §916. Same — Same — Same — Fraud in procuring execution of contract. The court instructs the jury that if you find that the agree- ment about which plaintiff testified was voluntarily entered into 34— Britt v. Burghart, 16 Tex. 36— Warder v. Seitz, 157 Mo. 140. Civ. App. 78. 37— "Weil v. Fineran, 78 Ark. 87. 35— Warder v. Seitz, 157 Mo. 140. ,§ 919] Attoeney and Client. 1219 by the defendant then the burden of showing that her consent to the same was procured by misrepresentation or concealment of material facts amounting to a fraud is upon the defendant. 38 § 917. Same — Same — Same — Special contract relied on as defense. The court instructs the jury that the burden of proving that there was such a special contract rests upon the defendant, A, and unless she establishes it by a preponderance of evidence her defense, founded upon such special contract, fails entirely. 39 § 918. Same— Same — Weight and sufficiency— Want or failure of consideration for note. The court instructs the jury that if you find from the evidence that the note in suit was given after the suit of A and others against B and others was affirmed by the Supreme Court of , and after the work for which the note was given should have been done, these facts you should consider in connection with other evidence, in determining whether either of the pleas of want or failure of consideration has been proved. 40 § 919. Same — Same — Same' — Value of services. The court instructs the jury that in determining the value of the plaintiffs' services the jury are not bound by the opinions of the witnesses, unless the jury shall find from all the evidence taken together, including the nature of the services, the time occu- pied in the performance of them, and the result of them, and the benefit derived by the defendants from the rendition of said services, that said opinions are correct. 41 The court instructs the jury that in determining the value of the plaintiffs' services the jury are not bound by the testimony of the expert witnesses; that testimony may be considered by the jury ; but if, in their judgment, the value fixed by those wit- nesses is not reasonable, they may disregard it, and find the amount which, in their judgment, would be reasonable. 42 38— Weil v. Fineran, 78 Ark. 87. 41— Head v. Hargrave, 105 U. S. 39_Cusick v. Boyne, 1 Cal. App. 45, 26 L. Ed. 1028. 643, 82 Pac. 985. 42 — Head v. Hargrave, 105 U. S. 40— Blizzard v. Applegate, 77 45, 26 L. Ed. 1028. Ind. 516. 1220 Fobms of Instructions. [§ 920 § 920. Same— Same— Questions for jury. The court instructs the jury that if you find from a preponder- ance of the evidence that defendant did enter into a contract with plaintiff to pay him the sums of money expended by him in finding her, and a $ fee for his services in that connection, and the further sum of per cent, of any share of her mother 's estate which he might recover for her, and if you further find that said contract was made in good faith, and not procured by fraud, misrepresentation, or concealment of material facts on the part of the plaintiff, and that afterwards the defendant revoked the power of attorney executed by her to plaintiff, then it is for you to say whether such revocation was intended by her and understood by him as dismissing him from the case, and denying him the right to proceed and carry out his part of the contract ; if you should find that it was so intended and so understood by both parties, then you should find for plaintiff such sum in dam- ages as you believe he is entitled to recover under the other in- structions given herein. 43 § 921. Same — Same — Measure of recovery. § 922. — In general. The court instructs the jury that if they believe from the evi- dence that defendant retained plaintiff to take charge of the liti- gation described in the declaration and that thereafter defendant Wrongfully discharged plaintiff, the measure of damages will be the full amount of compensation agreed upon less the expenses which would have been incurred by plaintiff in carrying out the agreement and that plaintiff was not under obligation to seek other employment for the time in which he would have been employed by defendant if he had carried out his agreement. 44 §923. —Arkansas. The court instructs the jury that if they believe from the evi- dence that the plaintiff is entitled to recover, the measure of damages is the amount of money he would have received had he 43— Weil v. Fineran, 78 Ark. 87. Am. Dec. 659; Myers v. Crockett, 44— Hunt v. Test, 8 Ala. 713, 42 14 Tex. 257. § 924] Attorney and Client. 1221 i been allowed to complete the performance of his contract, less the value of such services as he would have been required to render, and also deducting any expense which he would have been compelled to incur in carrying out the contract on his part. 45 The court instructs the jury that if you believe from the evi- dence that. the defendant contracted with the plaintiff, A, as an attorney at law, to pay him per cent, of her interest in the estate of B, in case he should establish her right thereto^ and recover same for her, and, by power of attorney, constituted and appointed plaintiff her agent and attorney to procure such inter- est, and also agreed to pay him $ for his services in making search for defendant and proving her identity and establishing her to be an heir of deceased, and also promised to reimburse plaintiff for all sums expended by him in finding her and all sums expended in her interest, and if the jury further believe from the evidence that the plaintiff did make such search, locate and develop defendant to be the daughter and heir of the de- ceased, and entitled to share in her estate, and if then the plain- tiff while he was taking all necessary steps in her behalf towards a recovery of her interest in said estate was prevented by defend- ant from doing so by revoking his employment as such attorney, then plaintiff is entitled to a verdict in his favor for all sums expended by him and which she agreed to repay, and also the sum of $ for his services in making search for defendant and showing her to be an heir of deceased, and is also entitled to recover damages for a breach of his contract of employment in any sum which the jury may feel warranted from the evidence in awarding to him, not exceeding $ . And in arriving at such verdict the jury may take into consideration the value of the estate of deceased, as it may have been proven in evidence. 46 §924. — Illinois. The court instructs the jury that if they find from the evidence that the plaintiff has performed services for the defendant, with 45 — -Weil v. Fineran, 78 Ark. 87. 46 — Weil v. Fineran, 78 Ark. 87. See Brodie v. Watkins, 33 Ark. 545, 34 Am. Kep. 49. 1222 Forms of Instructions. [§ 924 her consent, since and has advanced and paid moneys for her while acting as her solicitor, in matters connected with her employment, they will find for the plaintiff a reasonable value for such services, as shown by the evidence, and also the amount of moneys which the evidence shows he has advanced for her. 47 §925. — Minnesota,. The court instructs the jury that they should determine what plaintiffs' services were reasonably worth as rendered in this case, without regard to the number of lawyers engaged, and also that in fixing the value of such services they would have a right to take into consideration the services rendered by A; that is, they could take into consideration the time he devoted and the skill he brought into the trial of the case in determining the rea- sonable value of the services performed by the plaintiffs, provided the services rendered by A were with the knowledge and acqui- escence of defendant. 48 §926. —Missouri. The court instructs the jury that in the absence of a contract fixing the value of services rendered by the attorney, the attorney rendering the services has a right to reasonable compensation and that in considering the reasonableness of such compen- sation the jury may take into consideration all the circumstances of the case and are not bound by the opinions of witnesses ex- perienced as experts, but those opinions should be considered in connection with the other evidence in the case. 49 §927. —Texas. The court instructs the jury that in ascertaining the reasonable value of the services of plaintiff you will consider the nature of the litigation, the amount involved and the interests at stake, the capacity and fitness of plaintiff for the required work, the serv- ices tind labor rendered by plaintiff, the length of time" occupied 47— Bennett v. Connelly, 103 111. 49— Rose v. Spies, 44 Mo. 20 50. 48 — Calhoun v. Akeley, 82 Minn. 354. § 927] Attobney and Client. 1223 by him and the benefit if any derived by defendant from the liti- gation. You are further instructed to look to all the evidence in the case and to exercise your sound discretion and judgment thereon and allow plaintiff such reasonable amount as you may believe he is justly entitled to not to exceed the amount claimed in his petition. 50 50 — International & G. N. E. Co. '»'" v. Clark, 81 Tex. 48. CHAPTER LX. AUTOMOBILES. I. Statutory Emulations. § 928. Lights— Purpose. II. Injuries to Person or Property on Street or Highway. § .929. Eight to use streets and highways. § 930. — Arkansas. § 931. — Georgia. § 932. What constitutes negligence — In general, § 933. Same — Failure to turn to right. § 934. Same — Excessive speed. 1 935. — Missouri. § 936. — Washington. § 937. Same — Failure to stop on discovery of danger — Blind person. § 938. Same — Same — Frightening animal. | 939. Contributory negligence — In general. § 940. Same — Blind persons. § 941. Same — Failure to look before starting to cross street. § 942. Same — Acts in emergencies. ' § 943. Proximate cause of injuries — In general. § 944. Same — Concurrent negligence. § 945. Persons liable — Negligence of agent. § 946. Actions — Issues and proof. § 947. Same — Evidence — Presumptions. III. Injuries to Occupant of Automobile or to Automobile Itself. § 948. Contributory negligence — In general. § 949. Same — Excessive speed. § 950. Same — Acts in emergencies. § 951. Proximate cause of injuries — Concurrent negligence. Cross-Beference. Manner of driving, see Homicide, § 3439. (1224) § 932] Automobiles. 1225 I. Statutory Regulations. §928. Lights— Purpose. The court instructs the jury that the purpose of lights on an automobile is not only to enable a person approaching an auto- mobile to see it but also to enable the driver of an automobile to see a reasonable distance in the direction in which the automo- bile is proceeding, and that the lights must be sufficient for this purpose. 1 II. Injuries to Person or Property on Street or Highway. § 929. Right to use streets and highways. §930. —Arkansas. The court instructs the jury that no man has the right to use a public street of a city as a speedway, but every man has a right to drive an automobile on the streets, just as much right as a man has to drive a buggy in it, or to cross it on foot, but wher- ever any man uses a dangerous machine, he must guard the exer- cise of that right with a proper care and due regard for the lives and safety of people who have an equal right to be upon the streets. 2 §931. —Georgia. The court instructs the jury that an automobile has an equal right of passage on a public highway with a buggy or any other conveyance. It does not have a greater right to the highway or road than a buggy or conveyance, but it has the same right to go along the road; yet the driver of each must observe towards the other proper caution — each must observe ordinary care and cau- tion. 3 §932. What constitutes negligence — In general. The court instructs the jury that pedestrians have in general, and under reasonable restrictions as to exercise of care by them, 1 — Giles v. Ternes, 93 Kan. 140, 3 — Shore v. Ferguson, 142 Ga. 657. 143 Pac. 491. 2-— Madding v. State, — Ark. — , 177 S. W. 410. 1226 Foems or Instructions. [§ 932 a right to travel anywhere upon a public highway, and it is negli- gence for a driver of a vehicle upon a public highway to reck- lessly run upon a pedestrian who is standing or walking with his back toward him. 4 , § 933. Same — Failure to turn to right. The court instructs the jury that you are to take all the evi- dence, all the circumstances, and determine whether he was doing anything he ought not to have done under all the circumstances. He had the right to make that turn. He had a right to use any part of the street that he was coming into, subject only to the rights of other people who might be there. If two vehicles meet in a street, it is the duty of each one of them, as seasonably as they can, to get each on his own right-hand side of the traveled way of that street. But that law does not compel a man always to be on the right side. He can use any part of the street, so long as he is not interfering with the rights of other people, and the fact that this happened on the right-hand side of the street is only another piece of evidence to be considered by you. You are to consider whether A was endeavoring, in making a turn, to get on the right-hand side near the hydrant, where, under cer- tain circumstances, he properly belonged. 5 § 934. Same — Excessive speed. §935. —Missouri. The court instructs the jury that if you find and believe from the evidence that avenue is a public street in the city of , crossing another public street known as avenue, and that said streets at the place of their intersection are much used for travel, and if you further find and believe from the evidence that on or about the day of , 19 — , the defendant was running and operating the automobile mentioned in the evidence, running the same upon and along avenue in an eastwardly direction from a point west of avenue, and if you further find from the evidence that at said 4 — Raymond v. Hill, 168 Cal. 473, 5-^Johnson v. Shaw, 204 Mass, 143 Pac. 743. 165. § 936] Automobiles. ' 1227 time the plaintiff was lawfully upon said avenue and attempting to cross said street at or about its intersection with the west line of avenue, and you further find that at said time and place the defendant approached said west line of avenue in his automobile and that he then and there negligently and carelessly operated said automobile by running it at an excessive high, and dangerous rate of speed and by fail- ing to check the speed thereof as it approached said west line of avenue, o>r carelessly and negligently failed to give a warning or signal of the approach of the automobile as it ap- proached said west line of avenue, and if you further find that by reason of such acts or either of them the defend- ant's automobile ran into or against plaintiff and injured him, and if you further find from the evidence that plaintiff was exer- cising ordinary care for his own safety, then your verdict must be for plaintiff. 6 §936. —Washington. The court instructs the jury that the ordinance of the city of limits the speed of automobiles, and motor vehicles along street, as far south as the south side of street, at a rate of speed not to exceed miles per hour, ex- cept at street crossings, and the laws of the state of set the maximum rate of speed at which a vehicle may proceed over street crossings, such as the crossing at and streets, at miles per hour when a person is on the crossing; so if you find in this case, that the defendant was pro- pelling his automobile southward along street at a rate in excess of miles an hour, and in excess of miles per hour on the intersection of the two streets, when there was an- other person on the crossing, then you will find the defendant guilty of negligence, and if you find that the defendant was ex- ceeding the speed limit, as I have defined above, and that that was the proximate cause of the collision, and if you further find 6 — Cool v. Petersen, 189 Mo. App. 717. 1228 Fobms op Instructions. [§ 936 that the plaintiff was not himself guilty of contributory negli- gence, then your verdict shall be for the plaintiff. 7 § 937. Same — Failure to stop on discovery of danger — Blind per- son. The court instructs the jury that if you find that the plaintiff was blind, and that this fact could have been discovered by the defendant by the use of ordinary care before the plaintiff was struck by the automobile, then it was the duty of the defendant to stop his machine upon discovering such fact, in order to prevent the accident, and, if he failed to do so, he would be guilty of such negligence as would make him liable in this action. 8 §938. Same — Same — Frightening animal. The court instructs the jury that if the defendant, by himself or agent, was running or driving the automobile in question, and that the horse which was drawing the buggy in which plaintiff was riding became frightened or showed that it was about to be- come frightened by the approach of such automobile, and that said defendant either knew that fact or by the exercise of ordi- nary care and diligence might have known that fact, then it was his duty to cause such automobile to come to a full stop until such horse had passed such automobile. 9 The court instructs the jury that, if they believe from the evidence that the defendant was driving the automobile along the public highway, and that it appeared to him, or might, by the exercise of reasonable diligence on his part have appeared to him, that the team of mules, drawing the conveyance in which the plaintiff was riding, was about to become frightened, and if they further find that the defendant did not thereupon cause the au- tomobile to come to a full stop until said team had passed, and that plaintiff was himself exercising reasonable care and cau- tion, and was injured by reason of the failure of the defendant to bring the automobile to a full stop, then the defendant is 7 — Anderson v. Kinnear, 80 Wash. 9 — Ward v. Meredith, 220 111. 66, 638, 141 Pac. 1151. aff'g 122 111. App. 159. 8 — McLaughlin v. Griffin, 155 Iowa 302. §941] Automobiles. 1229 liable to the plaintiff for the loss and damage sustained by him by reason of such injuries. 10 § 939. Contributory negligence — In general. The court instructs the jury that, if he [plaintiff whose wagon was struck from behind by automobile ambulance] was sleeping or nodding, he was guilty of contributory negligence, and can- not recover. 11 §940. Same — Blind persons. The court instructs the jury that a blind person has the same rights on the public street as any other person, and it is not ordi- narily negligence for a blind person to go upon the streets un- attended, if such person use ordinary care as defined in these instructions ; but, if you believe from the evidence that the plain- tiff was blind, that fact would not excuse him from his obligation to use due bare. He was nevertheless bound to exercise that de- gree of care that an ordinary prudent person would have exer- cised under the circumstances as shown by the evidence, and the fact that he was blind not only did not excuse him from the exer- cise of ordinary care, but required of him the greater use of his other sense to discover, if possible, whether any vehicle was ap- proaching the street over which he was crossing, and, if he failed to exercise such care, he cannot recover ; but if you find that he did exercise such care, and he was injured on account of the defendant's negligence, then you should find for the plaintiff. 12 § 941. Same — Failure to look before starting to cross street. The court instructs the jury that if you should find from the evidence that the plaintiff, immediately before he started to cross the street, failed to look north to observe whether there were approaching vehicles, and if you should find that such fail- ure to look north amounted to negligence, that is, it was the failure to exercise ordinary care on his part, yet, if you further find that he had reached a place on the street where, if the de- 10— Christy v. Elliott, 216 111. 31, lance Co., — Mich. — , 152 N. W. 1 L. R. A. (N, S.) 215n, 108 Am. 923. St. Rep. 196n, 3 Ann. Cas. 487. 12— McLaughlin v. Griffin, 155 11 — Grogitzki v. Detroit Ambu- Iowa 302. 1230 Forms of Instructions, [§ 941 fendant had operated its motor truck in accordance with the provisions of the city ordinance, he would have been out of the danger zone, then his failure to look north at the time when he started to cross the street would not preclude a recovery, because of his right to rely upon the use of the street by the defendant in a lawful manner, and of his right to expect the automobile truck to be at a place where under the ordinance it had a right to be. 13 §942. Same — Acts in emergencies. The court instructs the jury that the act of a pedestrian on a public highway in running in front of an automobile as the re- sult of fright or terror, caused by the sudden discovery of the automobile near him, or by a noise caused by the automobile, does not necessarily constitute contributory negligence on his part, or, in other words, if the act of the defendant caused fear and loss of presence of mind on the part of the plaintiff, so as to impel her to rush into danger, as stated before, her mere terror or mistake of judgment in so acting shall not be taken by you to be contributory negligence on her part. 14 § 943. Proximate cause of injuries — In general. The court instructs the jury that it does not follow that because there was an accident and some injury there can be a recovery by the plaintiff in this case. It must have been an injury caused by some actionable negligence of the defendant's servant, from which plaintiff was free, and while he himself was guilty of no negligence. And you must also find that the injury was not caused by the unlooked for and unexpected action of A [driver of approaching wagon]. 15 § 944. Same — Concurrent negligence. The court instructs the jury that if you find from the evi- dence that has been introduced that both the plaintiff and the defendant were guilty of negligence (that is, did not use the de- 13 — Mosso v. E. H. Stanton Co., 15— Grogitzki v. Detroit Ambu- — "Wash. — , 148 Pac. 594. lance Co., — Mich. — , 152 N. W. 14— Raymond v. Hill, 168 Cal. 473, 923. 143 Pac. 743. § 947] Automobiles. 1231 gree of care which an ordinarily prudent person would use under the circumstances and conditions in which they were situated), then and in that event your verdict should be for the defendant. A good guide to determine whether the plaintiff was guilty of negligence contributing to "the injury is : "Would there have been no accident and no injury to the plaintiff but for the negligence of the plaintiff? And, finally, did plaintiff, under all the cir- cumstances of the case, exercise that degree of care which an ordinarily prudent man would have used under the same circum- stances ? If you find that the plaintiff did not use such degree of care, then he cannot recover in this action. 16 § 945. Persons liable — Negligence of agent. The court instructs the jury that if they find either that the defendant left the automobile in charge of his son to take it home, or in charge of his son and coachman together to take it home, or in charge of the coachman alone, and the coachman neglected his duty in that regard, and allowed the son to run the machine, and by the negligence of the son the accident occurred, without contributory negligence on the plaintiff's part, then, in either case, the defendant is responsible and liable for that negli- gence and its consequences. 17 §946. Actions — Issues and proof. The court instructs the jury that the court cannot tell you what is or what is not negligent, but the plaintiff before he can recover, if he recovers at all, it must be upon the acts of negligence as alleged in the petition. 18 § 947. Same — Evidence — Presumptions. 19 The court instructs the jury that in an action brought to re- cover damages, either to the person or property, caused by run- ning an automobile propelled by mechanical power in the public 16 — Anderson v. Kinnear, 80 19 — Circumstantial evidence in Wash. 638, 141 Pac. 1151. action for wrongful death, see Evi- 17 — Collard v. Beach, 81 App. Div. denoe, § 2977. (N. Y.) 582. 18 — Shore v. Ferguson, 142 Ga. 657. 1232 Forms of Instructions. [§ 947 highway at a greater rate of speed than miles per hour, the plaintiff is deemed to have made out a prima facie ease by show- ing the fact that he or she has been injured, and that the person running such automobile, either by himself or his agent, was at the time of the injury running the same at a speed in excess of miles per hour. 20 III. Injuries to Occupant op Automobile or to Automobile Itself. § 948. Contributory negligence — In general. The court instructs the jury that ii, upon the other hand, the plaintiff, in driving his car along the street in question, by the exercise of ordinary care on his part could have discovered the existence of the obstruction in the street, and failing to do so, ran his car into the obstruction and was injured, his injuries would be attributable to want of care, and he would not be au- thorized to recover; or if, in the exercise of ordinary care, he discovered the obstruction in the street, and, after making such discovery, he could have prevented the accident and injury to himself by the exercise of ordinary care for his own protection, and failed to do so, and was thereby injured, he could not re- cover for such injuries, and you should so find. 21 §949. Same — Excessive speed. The court instructs the jury that one in charge of an automo- bile driving upon a dark night over a straight stretch of strange country road at such speed that he is unable to stop within such distance as he may clearly see, under any circumstances and conditions, an obstacle in the highway, is negligent, and if the excessive speed contributed to his running into, or being injured by such obstacle, there can be no recovery. 22 § 950. Same — Acts in emergencies. I am asked by the plaintiff to charge you that some testimony has been offered by the defendant by which it is attempted to • 20— Ward v. Meredith, 220 111. 66, 22— Super v. Modell Township, 88 aff'g 122 111. App. 159. Kan. 698, 129 Pac. 1162. 21— Holliday v. City of Athens, '10 Ga. App. 709. § 951] Automobiles. 1233 show that the plaintiff might have stopped his automobile, or might have turned it to the right or left, before it went into the excavation. The plaintiff has told you what he did as soon as he discovered the excavation in front of him, and has told you the kind of automobile he was on at the time, and the year when it was made, and the distance in which it can be turned, the. speed, going at the rate of or miles per hour. Upon this point I charge you that our Supreme Court has said that one suddenly put in danger is not required imperatively to do that which, after the peril is ended, it is seen might have been done, and escaped. The law makes allowance for the fright and lack of carefulness or judgment incident to the peril, and it would be absurd to require the plaintiff in this case, when he saw the excavation ahead of him, and was suddenly called upon to decide how he should escape, to exercise the same coolness and nerve that an uninterested bystander might manifest. There can be no question about that, gentlemen of the jury, but still he is bound to use that degree of diligence which the average prudent man would use on such an occasion as that, and, if he had a right to anticipate that there was any peril at that par- ticular point, of course, gentlemen of the jury, he was bound, in approaching at a rate of speed which was inconsistent with a rate which would have been adopted by a reasonably prudent person. 23 § 951. Proximate cause of injuries — Concurrent negligence. The court instructs the jury that whatever the law required positively the defendant to do, a failure to do so is negligence, and in this case the law required the city to keep the streets in safe condition for travel in the ordinary modes, and, if you are satisfied from the evidence that it failed to do so, then I charge you that the defendant was guilty of negligence. The law also required the plaintiff to exercise ordinary care in using the street, and if you are satisfied from the evidence that he failed to do so, then I charge you that the plaintiff was also guilty of 23— Karrer v. City of Detroit, 142 Mich. 331. " Blashfield Vol. 1—78 1234 Forms of Instructions. [§951 negligence. Therefore, if you are satisfied,' from the evidence, that the defendant was negligent, and such negligence resulted in injury to the plaintiff, and you are also satisfied, from the evidence, that the plaintiff was also negligent at the same time, and his negligence concurred with the negligence of the defend- ant, and concurring with the negligence of the defendant, contributed to this injury of the plaintiff, so that plaintiff's negli- gence would become a proximate cause of the injuries, and that the plaintiff would not have been injured if he had not been negligent, even though the defendant was also negligent, the plaintiff, under such circumstances, could not recover for his injuries. 24 24 — Holliday v. City of Athens, 10 Ga. App. 709. CHAPTEE LXI. BAIL. § 952. Actions on bonds — Questions for jury. § 952. Actions on bonds — Questions for jury. The court instructs the jury that the only question for their consideration is, whether there has been an avoidance on the part of the debtor; and if he might have been taken, by the officer, by the use of common and ordinary diligence, there was in law no such avoidance and that the promise of A, as claimed by the plaintiff, furnished no excuse for the want of such diligence ; but that the jury must determine from all the evidence before them, whe.ther such diligence had been used. 1 1 — Bebee v. Gardner, 11 Conn. 104. (1235) CHAPTER LXn. BAILMENT. § 953. Bailment distinguished from sale. § 954. Delivery to bailee — Symbolical delivery. § 955. Same — Admission on week day as to ownership and possession of property delivered on Sunday. § 956. Defects in property at time of delivery — Liability of bailor u> bailee. § 957. Same — Liability of bailee to bailor. § 958. Negligence of bailor — In general. § 959. Same — Customer in store. § 960. Negligence of bailee — Care required — Bailment for benefit of bailor. § 961. — Illinois. § 962. — Tennessee. §963. — United States. § 964. Same — Same — Bailment for benefit of bailee. § 965. — Alabama. § 966. — Illinois. § 967. — New York. § 968. Same — Same — Bailment for mutual benefit. § 969. — In general. § 970. — Illinois. § 971. — Indiana. § 972. — Maryland. § 973. — Massachusetts. Jj 974. Same — Limitation of liability. § 975. Conversion by bailee. § 976. — Alabama. § 977. — Georgia. § 978. Termination — Notice. § 979. Same — Tender of property. § 980. Bedelivery — Excuses for failure to redeliver. § 981. Compensation and lien — In general. § 982. Same — Waiver or loss of lien. § 983. Actions — Evidence — Presumptions and burden of proof. Cross-References. Particular bailments, see Banks and Banking; Carriers; Depositaries; Factors; Innkeepers; Livery Stable Keepers; Pledges; Warehousemen; embezzlement by bailee, see Embezzlement, §§ 2845-2847. (1236) § 954] Bailment. 1237 § 953. Bailment distinguished from sale. The court instructs the jury that if the jury find from the evidence that the plaintiff was to furnish (a quantity of hides) to defendant, which defendant was to convert into (leather) and return to plaintiff for a compensation, and if they 'also find that the title to the (hides) was not to be changed by the transaction, but was to remain in plaintiffs ; then the jury must find that the contract was one of bailment and not of sale, and that the ownership did remain in the plaintiff, notwithstanding the jury should also find from the evidence that the plaintiffs were to receive a commission for buying the (hides), and a further com- mission for selling the (leather), and that the defendant was to be compensated only out of the net proceeds remaining, if any, after deducting costs, expenses, commissions, insurance and interest. 1 The court instructs the jury that if the (state the identical thing, as lumber) which was delivered by the plaintiff to defend- ant was to be redelivered or restored, though in an altered form, it was a bailment, and the title, to the property did not pass out of the plaintiff and plaintiff cannot recover its value from defend- ant, but if defendant was not to restore the (lumber) which was delivered to him but was at liberty to return other (lumber) of equal value, defendant becomes a debtor to make the return, and the title of the property is changed. In the latter case it is a sale and defendant is liable for the value of the (lumber). 2 § 954. Delivery to bailee — Symbolical delivery. The court instructs the jury that though it is necessary that the property should have been delivered to (defendant, or plaintiff — the bailee) in order to constitute (state what under- taking was made), yet such delivery may be symbolical or of a part of the whole property which is the subject-matter of the undertaking. The delivery of a key where the goods are locked 1— Hyde v. Cooksop, 21 Barb. (N. Seld.) 433, 57 Am. Deo. 530; Hyde y.) 92. v. Cookaon, 21 Barb. (N. Y.) 92. 2 — Foster v. Pettibone, 7 N. Y. (3 1238 Forms of Instructions. [§ 954 up is so far a delivery of the goods that it will support (plain- tiff's or defendant's — the bailee's) possession. 3 §955. Same — Admission on week day as to ownership and possession of property delivered on Sunday. The court instructs the jury that if they believe from the evidence that the defendant was intrusted with the safe-keeping of money belonging to the plaintiff and that part of said money was delivered to him on Sunday, and the defendant thereafter on a week day admitted the sum of $ to be in his hands belonging to the plaintiff and promised to apply the same in payment of the rent for the premises mentioned in and under the contract offered in evidence, but neglected and failed to apply said money in payment of said rent, then the jury must find for the plaintiff for said amount of money in the hands of the defendant, and in their discretion may allow interest thereon from the time the defendant failed to pay the same as promised by him. 4 § 956. Defects in property at time of delivery — Liability of bailor to bailee. The court instructs the jury that if you find in this case that the injuries caused to the plaintiff [bailee] were caused by reason of faulty material or faulty construction of the bicycle in ques- tion, plaintiff will be entitled to a verdict. 5 § 957. Same — Liability of bailee to bailor. The court instructs the jury that if you find from the evidence that the plaintiff hired his mare to the defendants for the purpose (of being used on the street railroad of the city of ), the plaintiff thereby engaged and bound himself that the mare so hired was reasonably fit and suitable for such purposes and such uses. If, therefore, you find that the mare so hired was injured while in the use *)f the defendants in pulling their street cars, without their fault, and through the nervousness and fret- 3 — Nevan v. Roup, 8 Iowa 207. 5 — Moriarty v. Porter, 22 Misc. 4 — Haacke v. Knights of Liberty (N. Y.) 536. Social & Literary Club, 76 Md. 429. § 961] Bailment. 1239 fulness of said mare, or because of her diseased condition at the time the plaintiff hired her to the defendants, or because of her unfitness to pull said street cars, then you should find for the defendants. 6 § 958. Negligence of bailor— In general, The court instructs the jury that a good defense is made out if the facts show that the plaintiff was himself negligent in any matter connected with the placing of the goods in the defend- ant's custody and if such negligence by the plaintiff contributed to or was part of the cause of the loss or injury complained of J § 959. Same — Customer in store. The court instructs the jury that though the defendant is liable for failure to exercise ordinary care in protecting clothing laid aside by plaintiff while trying on garments with a view to purchase, yet if you find that the defendant had provided a safe place for the keeping of such garments, and an attendant to care for them, but that instead of giving his coat to such attendant the plaintiff himself hung it upon a hook in another place from which it was stolen, then the loss is the result of the plaintiff's negligence, and your verdict will be for defendant. 8 § 960. Negligence of bailee — Care required — Bailment for benefit of bailor. §961. —Illinois. The court instructs the jury that one who undertakes, without reward, to take care of the chattels or properties of another or to perform any duty or labor, upon them is required to use in its performance such care as men of common prudence, however inattentive, ordinarily take of their own affairs, and he will be liable only for bad faith or gross negligence which is an omission of such a degree of care. 9 6 — Bass v. Cantor, 123 Ind. 444. 8 — Trowbridge v. Schiever, 5 Daly 7— Parker v. Union Ice & Salt Co., (N. Y.) 11. 59 Kan. 626, 68 Am. St. Eep. 383, 54 9— Skelley v. Kahn, 17 111. 170. Pac. 672; McAllister v. Simon, 27 Misc. (N. Y.) 214. 1240 Foems of Insteuctions. [§962 §962. —Tennessee. The court instructs the jury, that although a gratuitous bailee is bound to exercise only slight care, yet it is his duty to follow the instructions given by the bailor, and if the jury find from the evidence that defendant gratuitously undertook to (here state what, e. g. carry the money of the plaintiff to a certain place and there deliver it), and (here state the violation e. g. that after receiving the money defendant gave it into the care of a third person who undertook to deliver it, but that it was stolen from the pocket of such third person while on the way),' then ^defendant is liable to the plaintiff: for the. loss of the money. 10 § 963. — United States. The court instructs the jury that persons who undertake, with- out reward, to care for personal property belonging to another are bound to exercise sUch reasonable care as men of common prudence usually bestow for the protection of their own property of a similar character. The exercise of reasonable care is in all cases such as is dictated by good faith, and is such care as is usually and generally deemed necessary in the community for the security of similar property under like conditions, but no more. In order to find negligence, the jury must find as a fact that such reasonable care as was required by the circumstances of the case, was omitted. 11 § 964. Same — Same— Bailment for benefit of bailee. §965. — Alabama. The court instructs the jury that if the defendant borrowed or hired the mare to do light work, and put her to heavy, work, and while she was doing such heavy work she received an injury from which she died then the defendant is liable, although the injury to the mare occurred without any fault on the part of the defendant. 12 10— Colyar v. Taylor, 41 Tenn. 12— Cartlidge v. Sloan, 124 Ala. 372. 596. 11 — Preston v. Prathers, 137 U. S. 604, 34 L. Ed. 788. § 967] Bailment. 1241 The court instructs the jury that if the defendant used the mare at different work from that agreed upon, if any was agreed upon, and she received an injury while being so used from which she died, defendant is liable whether borrowed or hired. 13 §966. —Illinois. The court instructs the jury that although they believe from the evidence, that the defendant borrowed from the plaintiff the mare in question, yet if they further believe that the defendant used the same care and diligence, and prudence, in taking care of the mare,' the most prudent, careful man would take of his own property, placed under similar circumstances, then the jury will find for the defendant. 14 The court instructs the jury if they believe from the evidence that the mare in controversy was borrowed by the defendant of the plaintiff, and that during the time she was so borrowed she died from some unavoidable accident, and the defendant used such care as the most prudent take of theirs, without any carelessness on the part of the defendant, they will find for the ' defendant. 15 The court instructs the jury that if they believe, from the evidence, that the mare in question in this case, died from inevit- able casualty, or by causes or under circumstances over which the defendant had no control, and could not prevent, then they will find for the defendant, unless they further believe that the defendant was guilty of negligence or carelessness. 16 §967. —New York. The court instructs the jury that a borrower of a chattel with- out paying hire for its use is bound to exercise extraordinary diligence and is responsible for the slightest neglect. He is bound to exercise all the care and diligence that the most care- ful persons apply to their own affairs and the omission of the 13 — Cartlidge v. Sloan, 124 Ala. 15— Howard w. Babeook, 21 111. 596. 259. 14— Howard v. Babeoek, 21 111. 16— Howard v. Babcoek, 21 111. 259. 259. 1242 Forms op Instructions. [§ 967 most exact and scrupulous caution is regarded by the law as a culpable neglect. 17 § 968. Same — Same — Bailment for mutual benefit. §969. —In general. The court instructs the jury that if the jury find from the evidence that plaintiff undertook (to do certain work for the defendant upon the chattel in question belonging to defendant or undertook to manufacture for defendant certain articles from materials to be furnished by defendant) and if they further find that plaintiff did the work unskillfully, and that it was so badly and improperly done that the thing produced totally failed of being of any use or value, or that it was wholly inadequate for the purposes for which it was designed, then plaintiff cannot recover any compensation for his work. If, however, the thing produced has some value, but the jury find that it was imperfectly and ineffectually done, then plaintiff may recover for his services such an amount as his work was reasonably and actually worth to the defendant under all the circumstances, but in no case can they allow the plaintiff's "recovery to exceed the value of the services after deducting the amount of damage caused to the chattel (or materials) by being badly or unskillfully wrought upon by the plaintiff. 18 §970. —Illinois. The court instructs the jury that if the jury believe from the evidence, that the mares in controversy were hired by H, the plaintiff, to B, the defendant, to be used by him, and that they were mutually benefited by the arrangement, then B is only required to use such care as ordinary prudent men use with their property, in taking care of the mares; and if the jury further believe, from the evidence, one of the mares died, and that the defendant used such care and diligence in taking care of the mare, they will find for the defendant. 19 17 — Seranton v. Baxter, 6 N. Y. sent an issue on defendant's coun- Super. Ct. (4 Sandf.) 5. terclaim, an appropriate instruction 18 — Faxen v. Mansfield, 2 Mass. should accompany the above. 147; Grant v. Button, 14 Johns. 19 — Howard v. Babcoek, 21 111. (N. T.) 377. If the pleadings pre- 259. § 971] Bailment. , 1243 • The court instructs the jury that if they believe from the evidence that after the mare in controversy had been sold and delivered by the defendant to the plaintiff, she was hired by the plaintiff to the defendant, and that the hiring was for the mutual benefit of the parties, then and in such case, the defendant is only required to use such care as ordinary prudent men take of their property, in taking care of the mare ; and if the mare, while thus in the care and possession of the defendant, died, and that the defendant took such care of the mare, they will find for the defendant. 20 § 971. — Indiana. The court instructs the jury that, although it is true that, by hiring his mare to the defendants for (use on the street cars), the plaintiff impliedly engaged that she was reasonably fit for that purpose, this gave the defendants no right to use her after it became manifest to them that by reason of her nervousness, or fretfulness, or diseased condition, she was not fit for such work. They had no right to use her? If her board devolved upon them, it was their duty to supply her with plentiful food and water at the proper time. It was their duty, also, not to require her to do more work than it was manifest she could perform without injury, and if, during such use, it was plainly evident to the defendant's employees that she was exhausted, overheated, or suffering by reason of disease, and her continued use was dangerous to her health and life, it was their duty then to abstain from further use of her without obtaining the plain- tiff's consent to the same; and if, without so doing, they negligently persisted in such use, and by reason of the same she was so injured that she died, the defendants are liable. 21 The court instructs the jury that if the plaintiff put the chattel in question into the possession of defendant at the request' of defendant, and that any benefit, howsoever slight, thereby .resulted to the defendant, then the bailment would not be for the sole benefit of the plaintiff, but would be a bailment for 20 — Howard v. Babcock, 21 111, 21— Bass v. Cantor, 123 Ind. 444. 259. 1244 Fokms of Instructions. ( [§ 971 mutual benefit, and the duty of the defendant would not be dis* charged by the exercise of slight care, but it would be his duty to exercise ordinary care for the protection of the property. 22 §972. —Maryland. The court instructs the jury that if the jury find from the evidence that the defendant undertook for a reward to deliver the team of horses and vehicles attached and described in the evidence, to a person designated by the plaintiff, and in the course of this undertaking, intrusted the driving of the team to one who by his negligence permitted the horses to run away, whereby the plaintiff suffered damage, then the plaintiff is entitled to recover, and the jury will allow such damages as they may find from the evidence the plaintiff suffered by reason of the defend- ant's fault in the premises. 23 § 973. — Massachusetts. The court instructs the jury that a workman who undertakes to do work upon chattels for hire, is bound to bring to his services a degree of skill commensurate with the nature of the work, and he must use such reasonable skill as the particular work reason- ably requires, and if the jury find from the evidence that the plaintiff delivered to the defendant (state the particular thing, as cloth to be made into a dress) without any instructions to defendant as to the method of doing the work thereon, the defendant is bound to exercise that degree of skill and care which a (state name of class to which artisan belongs, — as, dressmaker) would ordinarily possess or need to do the work in a reasonable and proper manner, and if the jury find that by reason of the failure to exercise such skill defendant improperly and negligently (state the particular thing done which is complained of, e. g. made up the dress with the cloth wrong side out) then the defendant is liable, and the plaintiff may recover for the injury caused by such unskillfulness. 24 22 — Vigo Agr. Society v. Brumfiel, 24— Lincoln v. Gay, 164 Mass. 537, 102 Ind. 146, 52 Am. Rep. 657. 49 Am. St. Rep. 480. 23 — American Dist. Tel. Co. of Baltimore • City v. Walker, 72 Md. 454, 20 Am. St. Rep. 479. § 976] Bailment. 1245 § 974. Same — Limitation of liability. The court instructs the jury that (plaintiff, — bailor) and the (defendant, — bailee) 25 had a legal right to fix, by the terms of their contract, the degree of liability which the defendant shall sustain, and to limit or reduce the degree of care or diligence which he should exercise in respect to the property delivered to him, except, however, that the defendant cannot be in this manner excused from loss resulting from his own fraud or gross negligence. If the jury shall find as a matter of fact that they did so contract, then the defendant will be liable only for (state the legal substance of the contract). 26 The court instructs the jury that if the jury find from the evidence that defendant was conducting an exhibition of animals, and if they further find that plaintiff delivered the animals in question to defendant's care and entered the animals under the rules of the association, and that such rules provided that the entry should be at the owner's risk, and that animals entered should be cared for and returned at the close of the exhibition, and that the defendant would exercise all reasonable vigilance in caring for animals exhibited, but would not be responsible for loss by fire or otherwise, then the duty of defendant was to exercise ordinary care, and if the jury finds that the loss of the animal in question occurred by reason of the want of such ordinary care, then the defendant will be liable notwithstanding the condition in its rules against responsibility for loss. 27 § 975. Conversion by bailee. §976. — Alabama. The court instructs the jury that if they believe from the evidence that A got the mare to do a particular kind of work, 25 — If there is evidence offered requests are made defining those ex- tending to show that the bailment ceptional bailments, was one of the exceptional bail- 26 — Wells v. Steam Nav. Co., 2 ments, as that of an innkeeper or N. Y. (2 Comst.) 204; Alexander v. carrier, insert, — "unless you find Greene, 7 Hill (N. Y.) 533; s. e. 3 from the evidence that the bailee Hill (N. Y.) 9. was an innkeeper £or carrier), with- 27 — Moeran v. New York Poultry, in the meaning of other instructions Pigeon & Pet-Stock Ass'n, 28 Misc. given by the court. ' ' Then see that (N. Y.) 537. 1246 Foems of Instructions. [§ 976 and put her to a different kind of work, and she was injured while doing such work, this was a conversion, and would make the defendant liable. 28 §977. — Georgia. The hirer of a horse is bound to put it to no other use than that for which it is hired; and if he does so it amounts to a conversion, and he becomes liable for any injury that occurs after the conversion and while the horse is in his possession. 29 The court instructs the jury that if you believe from the evidence that the defendant hired the horse from the plaintiff to go to one or more particular places specified in the contract and that he went to another and a different place in a different direction and over a different route from what was specified in the contract, that would amount to a conversion of the horse; and if the horse died while in his possession and after he had converted it to his own use, he would be liable for the value of the horse at the time of the conversion. 30 § 978. Termination — Notice. The court instructs the jury that (defendant) if you find that he received (plaintiff's) chattels without hire and for the (plaintiff's) benefit should, when he desired to terminate his liability, have notified the (plaintiff) to take the chattels away, and if after such notice the (plaintiff) neglected to take them away within a reasonable time, or if he could not be found by due inquiry, then the (defendant) should have stored the chattels at the (plaintiff's) risk and charge. 31 § 979. Same — Tender of property. The court instructs the jury that if they find from the evi- dence that defendant (bailee) performed his services gratuitously, and if they further find that after offering to deliver back the 28— Cartlidge v. Sloan, 124 Ala. 596. 29 — Malone v. Bobinson, 77 Ga. 719. 31 — Change words in ( ) to suit. Bale v. Brinckerhoff, 7 Daly (N. Y.) 45. 30 — Malone v. Robinson, 77 Ga. 719. * §981] . Bailment. 1247 goods and making tender of them to the (plaintiff-bailor) that the (plaintiff) did not accept them, then defendant was not obliged to longer retain the custody of the goods, and is not liable for any loss which may have resulted from his placing them in the street. 32 § 980. Bedelivery — Excuses for failure to redeliver. The court instructs the jury that (defendant, bailee) may excuse his failure to deliver the property back to the plaintiff on demand, by showing that the propertywas taken from defend- ant, and out of his custody by the authority of valid legal process, and that within a reasonable time he gave notice of the fact to the plaintiff, but if the property in custody of a defendant was demanded by third persons under color of process, it became the defendant's duty to ascertain whether the process was such as legally required him to surrender the property, and if it was not, then it was his right and duty to refuse to surrender the property and to offer such resistance to the taking of it, and to take such measures for the reclaiming of it, if taken despite his resistance, as a prudent and intelligent man would if the property had been demanded and taken under a claim of right to it by another person acting without legal process. It is not sufficient that defendant merely made a formal protest against the taking of the property under the process. 33 § 981. Compensation and lien — In general. The court instructs the jury that though there was no express agreement for a compensation or for lien to secure the same, yet if (defendant, the bailee) has bestowed any service upon the chattels bailed to him, and under such circumstances as would naturally give rise to an inference of an understanding that such services should be paid for, the law will presume in that case that there was a promise to pay what the services were reason- 32 — Raulston v. McClelland, 2 E. 33 — Roberts v. Stiverson, 123 N. D. Smith (N. Y.) 60; Babcock v. Y. 65. GUI, 10 Johns. (N. Y.) 287. 1248 Forms of Instructions. [§ 981 ably worth, and (defendant, the bailee) in such case may retain the goods in his custody until such compensation is paid. 34 § 982. Same — Waiver or loss of lien. The court instructs the jury that notwithstanding (plaintiff, the bailee) may have parted with the possession of the chattels, yet, unless he voluntarily surrendered them to (defendant, the bailor), the lien is not divested; and (if the plaintiff's possession was disturbed by a taking of the goods on execution process against a third person, the lien is not lost even though the plaintiff afterward, for hire, assisted in removing the goods). 35 § 983. Actions — Evidence — Presumptions and burden of proof. The court instructs you that the burden of proving facts suffi- • cient to show negligence on the defendant's part is upon the plaintiff; but it is sufficient that the facts be such that from them you can infer negligence and if at the time when the bail- ment was to terminate the defendant inexcusably refused to return the goods or returned them in a damaged condition then defendant must disprove the inference of negligence thereupon arising or must show that by reason of an act of God or of the public enemy or of an inevitable accident the loss occurred despite the exercise of all due care by defendant. 36 34 — Burdick v. Murray ,-3 Vt. 302, hire as a servant of the levying 21 Am. Dee. 588. creditor, assisted in removing the 35 — Moore v. Hitchcock, 4 Wend. goods. It was claimed that he (N. Y.) 292. In this case the goods waived his lien, were levied on and taken from the 36 — Claflin v. Meyer, 75 N. Y. 262. bailee 's possession and the bailee, for CHAPTER LXIII. BANKRUPTCY. § 984. Involuntary proceedings — Insolvency of debtor — ' ' Fair valuation ' ' of property and assets. § 985. Preferences by debtor — Actions by trustee — Evidence — Presumptions. §984. Involuntary proceedings — Insolvency of debtor — "Fair valuation" of property and assets. The court instructs the jury that in determining the value of the property and assets of the respondent on the day of , 19 — , you are required to fix such value at a fair valuation. This does not mean what the property would bring at a forced or auction sale. A fair valuation of the real estate is such sum as the property would. reasonably have sold for to a purchaser desiring to buy, and the owner wishing to sell. A fair value of the merchandise, implements, and other personal property is the sum that could have been fairly realized from the sale of such property in bulk, or in parcels, in the usual and ordinary way of selling such classes of property for cash in this market. A fair valuation of the notes and accounts is the net sum that, in your judgment, from all the evidence before you, could have been, with reasonable diligence, realized from the collection of such notes and accounts, within a reasonable time after , 19 — , and not the amounts as shown by their face, unless their face value was in fact their fair value. 1 §985. Preferences by debtor — Actions by trustee — Evidence — Presumptions. The court instructs the jury that the law' presumes and it is your duty to presume, that the defendant had no reasonable 1 — Plymouth Cordage Co. v. Smith, 18 Okla. 249, 11 Ann. Cas. 445, 90 Pac. 418. (1249) Blashfield Vol. 1—79 1250 Forms of Instructions. [§ 985 cause to believe a preference would be created by the payment of the note and overdraft and you should act upon and enforce this presumption of the law, unless it has been overcome by a preponderance of the evidence. 2 2 — Chisholm v. First Nat. Bank of Leroy, 176 111. App. 382. CHAPTER LXIV. BANKS AND BANKING. I, Banking Corporations and Associations. A. OFFICERS AND AGENTS. § 986. Liability for debts of bank. B. INSOLVENCY. § 987. Criminal offenses — In general. § 988. Same — Who is cashier of bank. § 989. Same — When bank insolvent. § 990. Same — When bank in failing circumstances. § 991. Same— Assets and liabilities of bank. § 992. Same — Evidence — Presumptions and burden of proof. § 993. Same — Same — Weight and sufficiency. II. Functions and Dealings, a. representation of bank by officers and agents. § 994. In general. § 995. President — Contracts in general. § 996. Same — Employment of attorney. § 997. Cashier — Personal use of bank funds. b. checks and drafts. § 998. In general. § 999. Payment of checks — Presentation. § 1000. Certification of cheeks — In general. § 1001. Same— Authority of paying teller. § 1002. Eaised draft. § 1003. Forged check — Ratification. c. collections. § 1004. Relation between bank and depositor for collection. § 1005. Failure to collect — Negligence. D. LOANS AND DISCOUNTS. § 1006. Usury. (1251) 1252 Forms of Instructions. B. ACTIONS. § 1007. Evidence — Presumptions — Knowledge on part of managing director. Cross-References. See Bills and Notes; embezzlement by officer, see Embezzlement, § 2853. I. Banking Corporations and Associations. A. OFFICERS AND AGENTS. § 986. Liability for debts of bank. The court instructs the jury that if you believe from the evi- dence in this case that the defendants took charge of and carried on and operated said Bank of A, either by themselves, >or through their officers or agents, and they, or their officers or agents, in the conduct of the business of said bank and in the usual course of banking business, drew the drafts or bills of exchange to and against plaintiff bank, offered in evidence before you, as alleged in its amended petition, and that plaintiff paid the sums therein alleged, and if you further believe from the evidence that said Bank of A, during said time, received said items sent for collection, and collected the same and never remitted to or accounted to plaintiff for same, as alleged in said petition, then all said defendants, including defendant B, would be liable therefor. 1 The court instructs the jury that if at the meeting of defend- ants on or about the day of , 19 — , it was agreed by defendants that A should go with B to C county and secure the signature of B's father to said note with such other security as A should regard as sufficient, and A went to C county with B, and came back and reported to or told defendants that said note had been signed by B 's father, and B had it to get one of the D's to sign it, and it would be forthcoming in a few days, and defendants acted upon this and organized the bank electing directors and officers, or by electing directors, who, in- turn, elected 1 — Curtis v. First Nat. Bank of Ft. Worth, — Tex. Civ. App. — , 138 S. W, 795. § 987] Banks and Banking. 1253 officers, and that defendants permitted said officers to carry on and operate said bank and the indebtedness herein sued upon was created by said officers in the conduct of said bank in the usual course of a banking business, then the defendants, including B, would be liable for the indebtedness herein sued upon. 2 \ B. INSOLVENCY. § 987. Criminal offenses — In general. 3 The court instructs the jury that if you shall believe from the evidence that defendant at the county of J and State of M, at any time within years next before the day of , 19 — , was the president of the Bank, and that the same was a corporation and doing business as a banking institution in said county and state, and did then and there unlawfully and feloniously assent to the taking and receiv- ing on deposit in said banking institution the m6ney of V, to the amount of $ or more and that said banking institu- tion was then and there in failing circumstances and that the defendant was then and there the president of said banking insti- tution doing business as such, and that the defendant had knowl- edge at the time when such deposit was received that said banking institution was in failing circumstances, you will find the defendant guilty and assess the punishment by imprisonment in the penitentiary for any time not less than years and not more than years. 4 The court instructs the jury if the jury believe from the evi- dence that on , 19 — , the witness, V, did deposit in the Bank, a banking institution doing business in the state of , at the cbunty of , $ , or any part thereof to the value of $30 or more, lawful money of the United States, of the money and property of the witness, V, and shall further believe, from the evidence that the said deposit 2 — Curtis v. First Nat. Bank of 4 — State v. Darragh, 152 Mo. 522. Ft. Worth, — Tex. Civ. App. — , 138 "Feloniously" as used in these in- S. W. 795. struotions means wickedly, and 3 — Matters pertaining to law of against the admonition of the law; crime in general, see Criminal Law. unlawfully. 1254 Forms of Instructions. [§ 987 was not taken and received by the defendant himself, but was taken and received by some other person, but that such person was then and there in the employ of the said Bank, and acting under the direction and control of the defendant in employment, but that such other person had general power and authority from the defendant to receive deposits of money into said bank and that said bank was then and there in failing cir- cumstances, and the defendant had knowledge that said bank was then and there in failing circumstances, they will find the defend- ant guilty as charged. 5 The court instructs the jury that it is not of itself a crime for the president of a bank to borrow money from the bank of which he is president, and you can consider the fact that the defendant borrowed money from the bank in question, if you find he was president of the bank and did borrow money from the bank, in determining the condition of the bank on the day of , 19 — , and for no other purpose. 6 § 988. Same — Who is cashier of bank. The court instructs the jury that one who has been elected and made cashier of a bank and remains in the bank and holds himself out to the public as cashier of the bank, and is held out by the bank as its cashier for the purpose of receiving deposits, is under the law under which this defendant is being tried the cashier of the bank. 7 § 989. Same — When bank insolvent. The court instructs the jury upon the question of insolvency that the bank was insolvent in the sense used in the indictment : First, if the bank at the time of the deposit referred to in the indictment by A did not have assets sufficient to pay its debts; second, if the bank was financially unable to pay its debts or obligations when they became due. Now, this inability to pay its debts does not mean a temporary inability to pay its debts such as might occur when there is a "run on the bank" or failure of the officers of the bank to have enough available cash on any 5— State v. Darragh, 152 Mo. 522. 7 — Skarda v. State, — Ark. — , 6— State v. Darragh, 152 Mo. 522. 175 S. W. 1190. § 991] Banks and Banking. 1255 particular day to run the bank that day, or because of any other emergency, but it means an inability to meet the bank's obliga- tions or debts and pay depositors in the ordinary course of busi- ness when given such a reasonable time to get the money as might be expected or required by a bank in carrying on its banking business. In other words, if the bank, under ordinary and usual circumstances, was unable to get the money by putting up its collateral and credit to pay its debts or depositors as same be- came due and presented for payment in the ordinary course of its business, it was insolvent in the sense used in the indictment. 8 § 990. Same — When bank in failing circumstances. The court instructs the jury that a banking institution is in failing circumstances, when it is unable to meet the demands of its depositors in the usual and ordinary course of business, and this is true even though you shall believe that there was at the time a stringency in the money market. 9 § 991. Same — Assets and liabilities of bank. The court instructs the jury that in determining the ques- tion as to the condition of the bank on the ; day of , 19 — , you will consider the assets and their reasonable market value on that day, and without any reference to any indorsement of any of the notes made after the day of , 19— . 10 The court instructs the jury that in determining the question of whether or not the Bank, was in failing circum- stances on the day of , 19 — , you should consider the liabilities of the bank and the reasonable market value of the assets of the bank on that day regardless of any change, if any, or additional security, if any, which may have been given, since that day. If you shall find from the evidence that any part of the assets of said bank have been proven to have a market value, then you should give such assets such intrinsic value as may have been shown by the evidence in the ease, and if 8 — Skarda v. State, — Ark. — , 10 — State v. Darragh, 152 Mo. 175 S. W. 1190. 522. 9 — State v. Darragh, 152 Mo. 522. 1256 Forms of Instkuctions. [§ 991 there be any of said assets, to wit: stocks, bonds or negotiable paper, that have not in your opinion, from the evidence, been shown to have a market value, nor an intrinsic value, then such assets are presumed to be worth their face value. This- will have no application to such assets as may have been shown by the evi- dence to have no value at all, provided there is such evidence as to any of the assets of said bank. 11 The court instructs the jury that in considering the condition of the bank on the day of , 19 — , you will not take into account the $ of capital stock as a liability. 12 The court instructs the jury that in determining the condition of the Bank on the day of , 19 — , you should consider the reasonable market value of the assets of the bank on hand as compared to its liabilities on that day ; all consideration of the condition of the bank is confined to the day of , 19 — , but you may consider any evidence that may be before you showing its condition immediately before that day, if there is any such, to aid you in determining its condition on that day. 13 § 992. Same — Evidence — Presumptions and burden of proof. The court instructs the jury that the failure of the banking institution in question is prima facie evidence of knowledge on the part of its president that the same was in failing circumstances on , 19 — . The court instructs the jury that prima facie evidence is such that raise's such a degree of probability in its favor that it must prevail unless it be rebutted, or the contrary proved. 14 The court instructs the jury that although by the statute the failure of the Bank is made prima facie evidence of the knowledge on the part of the defendant that the same was in failing circumstances on the day of , 19 — , yet the burden of proving the state's case is not really changed. The law enables the state to make a prima facie case by proof of assenting to the creation of state indebtedness and the reception of the 11— State v. Darragh, 152 Mo. 522. 13— State v. Darragh, 152 Mo. 522. 12— State v. Darragh, 152 Mo. 522. 14— State v. Darragh, 152 Mo. 522. § 994] Banks and Banking. 1257 money into the bank, but the defendant can show the condition of the bank and the circumstances attending the failure and any facts tending to exonerate him from criminal liability; then on the whole case, the burden rests on the state to establish defend- ant's guilt beyond a reasonable doubt. The presuriiption of inno- cence with which defendant is clothed and never shifts, rests with him throughout the case, notwithstanding a prima facie case may have been made out by the. state. 15 § 993. Same — Same — Weight and sufficiency. The court instructs the jury that it is no offense for an officer of a bank to assent to the receipt of a deposit by such bank, when the same is in failing circumstances, and if at the time of receiv- ing such deposit, the officer did not at the time know it was in failing circumstances, but in taking into consideration the ques- tion as to whether or not the bank in question was in failing circumstances on the day of , 19 — , and as to whether or not the defendant had knowledge on that day of its condition, you may consider all the facts and circumstances in evidence before you. 16 . The court instructs the jury that in determining the value of any of the assets of the Bank on the day of , 19 — , as shown on this trial, the testimony of expert witnesses who have testified before you, if deemed by you unreasonable, may be disregarded. 17 II. Functions and Dealings. A. EEPEESENTATION OP BANK BY OFFICERS AND AGENTS. 18 § 994. In general. The court instructs the jury that the testimony of the president that he had no notice of any defect in the note, or defense against the same, would not be conclusive, and that notice tO' any of the other officers of the bank of such infirmity, if any, would be notice to the bank. 19 15 — state v. Darragh, 152 Mo. 522. on part of managing director, see 16— State v. Darragh, 152 Mo. 522. post, § 1007. 17— State v. Darragh, 152 Mo. 522. 19— Bank of Bushnell v. Buck 18 — Presumption as to knowledge Bros., 161 IoWa 362. 1258 Forms op Instructions. [§ 995 § 995. President — Contracts in general. The court instructs the jury that proof has been introduced in this court — the probative force of which, however, I do not under- take to determine — tending to show that some time in the early part of 19 — , prior to , A agreed with B that he would pur- chase the properties called the "abstract properties," then adver- tised for sale [date], andthat he would resell the same to B for the price bid therefor. If you find this to be a fact, I charge you that this agreement would impose no liability upon the defendant bank, of which A was president, unless you are satisfied from the proof that A was authorized by the bank to make such an agreement. It is without the general scope of the general authority of a bank president to make such agreement, and unless the plaintiff show authorization by the bank to A to make the same, or the bank accepted the benefit of the agreement as made by A, the contract in this respect would not be binding on the bank, and would impose no liability upon it, except as before stated. The liability, if any, would be his personal liabil- ity, and not that of the bank. In the absence of authority the president of a bank cannot dispose of the cash or credits of the bank, and he cannot, by virtue of his office, surrender or release claims of the bank against any one. I charge you that, if you should find that such an agreement was had, it was without the general scope of the powers of the president of the bank, and, in order to make it valid and binding upon the bank the plaintiff must show authority therefor, or that the bank acted upon or got the benefit of the agreement as made by A. 20 § 996. Same — Employment of attorney. The court instructs the jury that if you find from the evidence in this ease that A, while acting as president of the Bank, employed the plaintiff, B, as its attorney, and that under such employment the said B performed services for the said bank or held himself in readiness at all times to advise, consult, or other- wise serve the bank, being its regular attorney, for which service 20 — Memphis City Bank v. Smith, 110 Tenn. 337. § 997] Banks and Banking. 1259 he had not been paid, you will be warranted in finding for the plaintiff in such an amount as the proof in the ease shows his service to be reasonably worth. Provided, that you further find that the employment of the plaintiff and services rendered were known to the directors of the defendant bank, and were accepted by them and they acquiesced in said employment by A and rati- fied the same. 21 The court instructs the jury that if you find from the evidence in this case that the plaintiff, A, as an attorney at law, performed services, such as giving advice about the business of the bank during the period of years as alleged in the complaint in this case, that he refrained from taking cases against ithe bank, and always held himself in readiness to serve the bank when called upon by its cashier or other officers, and that the services rendered were at the solicitation of the cashier and other officers of the bank, that such services have never been paid for, then in that event you will be warranted in finding the plaintiff in such an amount as the proof shows such services to be reasonably worth. Provided, that you further find that the employment of the plaintiff and services rendered were known to the directors of the defendant bank, and were accepted by them and they acquiesced in said employment by B and ratified the same. 22 § 997. Cashier — Personal use of bank funds. The court instructs the jury that the general authority of the cashier as general agent of the bank to draw drafts or checks on the bank in the conduct of its business, does not by itself permit him to draw such drafts or checks in payment of his personal debts or to raise money for. the transaction of his personal busi- ness. "When therefore, as in this case, he draws a draft or check on the bank, payable to his own order and for his individual debt, the party acting thereon takes the risk that the agent or cashier may act without authority to do so, and if it appears that the agent had repeatedly done such acts, on previous occasions and such acts had been ratified and not repudiated by the officers of 21 — Dent v. People's Bank of Im- 22 — Dent v. People's Bank of Im- boden, — Ark. — , 175 S. W. 1154. boden, — Ark. — 175 S. W. 1154. 1260 Forms op Instructions. [§997 the corporation, then providing such acts have been done for a period of time sufficiently long to establish a settled course of business, it may be inferred from the general manner in which they have been done that such acts were known or ought to have been known by the directors and that the cashier had authority to do such acts, if that be shown, the bank is liable. Authority to make such personal use of funds of the bank may be shown there- fore by long-continued doing of such acts under such circum- stances as warrant the inference that the acts were known or authorized by said bank, that is, authority of the cashier may be inferred from the power he was accustomed to exercise without the dissent of the bank and with its acquiescence. 23 B. CHECKS AND DRAFTS. § 998. In general. The court instructs the jury that if they believe from the evi- dence that the check for dollars dated day of , 19 — , drawn on the National Bank signed , and afterwards paid by the defendant was in fact signed by the plaintiff or by one for her and with her consent or by her authority, they should find for the defendant. 24 § 999. Payment of checks — Presentation. The court instructs the jury that, where all the parties reside in the same place, the presentation of a check drawn on a bank and received in the usual course of business, is deemed within a reasonable time if made during banking hours of the next day after it was so received ; and it is the same whether the check be certified by the bank to be good or not, so far as. the drawer of the check is concerned. If the jury, therefore, believe from the evidence in this case that the checks in evidence in this cause were taken by plaintiffs in the usual course of business, and were sent to the bank on which they were drawn during banking hours of the next day after they were received ; and the said bank had be- fore then, and has since, been closed, and had, and has, stopped business; then the court instructs the jury that such effort to 23 — Gale v. Chase Nat. Bank, 43 24 — Phoenix Nat. Bank v. Taylor, C. C. A. 496, 104 Fed. 214. 23 Ky. L. Rep. 2307. § 10.00] Banks and Banking. 1261 present the checks is equivalent to a presentation of the checks, and is within reasonable time to charge the defendant upon the said checks. 25 The court instructs the jury that, if they believe from the evidence in this cause that the plaintiffs received of the defendant on the afternoon of the day of , 19 — , the two drafts or checks given in evidence, in order to take up two promissory notes of the defendant, of amounts corresponding with the re- spective amounts of said cheeks, and the plaintiffs then and there held said notes for an eastern bank for the mere purpose of col- lection, and, at the time of receiving said checks, plaintiffs delivered up to defendant his said notes, and on the same day remitted the amount thereof to the party from whom they re- ceived said notes; and if the jury further believe from the evidence that, immediately after the commencement of banking hours on the next day after receiving the said checks, and soon after — o'clock A. M. of the day of ,'l9 — , the plaintiffs' teller took said checks to the banking office and usual place of business of the , named as drawee in said respec- tive checks, for the purpose of presenting 'the same at said bank for payment, but was unable to obtain payment of said checks, or either of them, by reason that said bank was closed and had stopped payment, and that plaintiffs immediately and on the same day last aforesaid, gave the said defendant notice of the said matters and the non-payment by said bank of said checks; then the defendant is liable to the plaintiffs for the amount specified in said checks, and the jury will find for the plaintiffs accord- ingly, with interest on the amount at the rate of — per centum per annum after the day of , 19 — (the day of pre- sentment). 26 § 1000. Certification of checks— In general. The court instructs the jury that if they find from the evidence that the writing or paper sued upon by the plaintiff was marked 25— Bounds v. Smith, 42 111. 245. 26— Rounds v. Smith, 42 111. 245. But see Metropolitan Nat. Bank of Chicago v. Jones, 137 111. 634, 12 L. B. A. 492, 31 Am. St. Bep. 403. 1262 Forms of Instructions. [§ 1000 or certified "good" in the name of the defendant by an employee, and that the plaintiff obtained such marking or certification in pursuance of a design or plan to defraud the defendant by keep- ing or secreting said paper for such time as might be necessary to permit the money represented by such paper to be drawn out upon other orders, writings or checks, with the intention of then presenting the said writing, and demanding payment of the amount ordered therein to be paid, the jury will find for the defendant. 27 The court instructs the jury that if they find from the evidence that the check sued on was certified by the authority of the defendant company, and that at the time of said certification there was sufficient funds of the maker of said check on deposit with defendant to pay said check, then defendant had the right to retain out of the funds of said maker a sufficient amount to pay said check whenever same might be presented. 28 The court instructs the jury that if they find from the evidence that at the time the check sued on was presented to defendant for certification, there was. sufficient funds of the drawer on deposit with the defendant to pay the same, that it became the duty of the defendant to retain the said funds to pay said check, provided the jury finds from the evidence that defendant's teller had authority to certify said check. 29 The court instructs the jury that if they find from the evidence that the plantiff and one M, his brother, confederated or con- spired together to defraud the defendant by placing it in such a position that it might be called upon to pay the amount of the writing or check sued upon by plaintiff, after having already paid out upon other orders or checks the money to the credit of the drawer or drawers of such order or check, and that the plaintiff is in possession of the instrument sued on, as a party to such con- federacy or conspiracy, the jury will find for the defendant. 30 27— Muth v. St. Louis Trust Co., 29— Muth v. St. Louis Trust Co., 94 Mo. App. 94. 94 Mo. App. 94. 28— Muth v. St. Louis Trust Co., 30 — Muth v. St. Louis Trust Co., 94 Mo. App. 94. 94 Mo. App. 94. § 1001] Banks and Banking. 1263 § 1001. Same — Authority of paying teller. The court instructs the jury that if they find from the evidence that the checks were certified by the paying teller of the defend- ant company and if they further find from the evidence that said certifications were made in the general course of the defendant's business, and if they further find that plaintiff, in good faith, dealt with said defendant company on the basis of said course of business, and if they further find from the evidence that the officers of defendant knew of said course of business, then defend- ant will be bound by the act of its paying teller in making the certification of the check sued on. 31 The court instructs the jury that plaintiff is not required to prove that defendant's paying teller had actual authority con- ferred upon him by defendant to certify checks, but that plaintiff had the right in good faith to rely upon the apparent authority of said paying teller to certify checks. And the court further instructs you that whenever a person has held out another as his agent authorized to act for him in a given capacity, or has know-, ingly and without dissent permitted such other to act as his agent in such capacity, or where his habits and course of dealing have been such as to reasonably warrant the presumption that such other was his agent, authorized to act in that capacity, whether it be in a single transaction or in a series of transactions, his author- ity to such other to act for him in that capacity, will be con- clusively presumed, so far as may be necessary to protect th& rights of third persons who have relied in good faith, and in the exercise of reasonable prudence, and the principal will not be permitted to deny that such other was not his agent authorized to do the act that he assumed to do, provided that act was within the real or apparent scope of the presumed authority. 32 The court instructs the jury that the indorsement on the face of the check sued on is in proper form to constitute a certification thereof; and further instructs you that if you find from the evi- dence that J, defendant's paying teller at the time of making said indorsement had authority, or apparent authority as defined in 31— Muth v. St. Louis Trust Co., 32 — Muth v. St. Louis Trust Co., 94 Mo. App. 94. 94 Mo. App. 94. 1264 Fobms of Instructions. [§ 1.001 these instructions to make the indorsement o£ certification upon said check, and if you find further from the evidence that plaintiff acted in good faith and without fraud as defined in another instruction herewith given then your verdict must be for the plaintiff. 33 " The court instructs the jury that unless they find from the evi- dence that J, the person whose name appears on the face of the writing offered by the plaintiff, was authorized or held out to the public by the defendant company as being authorized to certify or mark "good" writings or checks of the character of the paper sued on by plaintiff, they will find for the defendant, and the court states to the jury that the fact that the said J signed him- self as the "teller" or was designated or called "teller" or "paying teller" of the defendant company, is not of itself suf- ficient to justify the conclusion that the said J was clothed with any such authority. 34 § 1002. Raised draft. 33 The court instructs the jury that if they find, from the evidence, that the B National Bank of , on or about the day of , 19 — , issued its draft upon the plaintiff for the sum of .$ , payable to the order of A, and delivered it to him for that sum, but afterwards the said draft was fraudulently altered and raised by said A, or some person unknown, so that it pur- ported to be drawn for the sum of $- instead of for the sum of $ only, without the knowledge or consent of the said B National Bank, the drawer thereof, and that afterwards the said draft so fraudulently raised and altered, as aforesaid, was presented to the plaintiff for certification and acceptance, and that thereupon the said plaintiff, by its duly authorized agent in that behalf, without knowledge that said draft had been changed or altered, indorsed upon said draft the following words: "Ac- cepted, payable through C clearing house, , 19 — , when 33 — Muth v. St. Louis Trust Co., 35 — Effect of alteration of bill or 94 Mo. App. 94. note' as between original parties, see 34 — Muth v. St. Louis Trust Co., Alteration of Instruments. 94 Mo. App. 94. § 1003} Banks and Banking. 1265 properly indorsed. — D National Bank, by B, teller," and that the said draft was by the said A deposited for credit in the F Trust and Savings Bank of G, and that the same was by said F Trust and Savings Bank indorsed and delivered to the defend- ant, and that afterwards said plaintiff paid to the defendant, in the usual course of business, the full sum of said $ , being the amount of said draft after the same had been so fraudulently changed and raised as aforesaid, instead of the sum of $ _, being the sum for which said draft was actually drawn, without knowledge of the fact that it had been so raised and changed, and that subsequently, and within a reasonable time after the discov- ery of the fact by the plaintiff that said draft had been fraudu- lently changed and altered, as aforesaid, from $ to $ (if the jury find, from the evidence, that it had been so fraudu- lently changed and altered), demand was made by the plaintiff on said defendant for repayment of said amount so received and collected on said draft in excess of $ , the sum for which it was originally drawn, and that payment thereof by said defend- ant was refused, then the jury are instructed that the plaintiff had a right to recover of the defendant in this action the sum of $ • The jury are further instructed that in case they find, from the evidence, the plaintiff is so entitled to recover from said de- fendant the sum of $ , and if they further find, from the evidence that there has been unreasonable and vexatious delay in the payment of the same by the said defendant to the said plain- tiff, they may allow interest thereon at the rate of — per cent, per annum. 36 § 1003. Forged check— Ratification. The court instructs the jury that if they believe from the evi- dence that the check for dollars dated day of , 19—, drawn on the ■ National Bank signed was paid by the defendant and that plaintiff with knowledge thereof received the proceeds of said check or the same was deposited to 36— Metropolitan Nat. Bank v. 74 Am. St. Rep. 180, aff'g 77 111. Merchants' Nat. Bank, 182 111. 367, A pp. 136. Blashfield Vol. 1—80 t 1266 ' Forms op Instructions. [§ 1003 the plaintiff's credit in the Bank and the same was drawn out of said bank by her or by her order or authority, then the jury should find for the defendant, even though they believe from the evidence that plaintiff did not actually sign such check or authorize another to sign the same for her. 37 C. COLLECTIONS. § 1004. Relation between bank and depositor for collection. The court instructs the jury, that if they believe, from the evi- dence, that the plaintiffs sent the certificates of deposit, given in evidence, to the defendants for collection, which were collected by the defendants, and there was no express or implied agreement as to the relation which should exist between the parties. — that no agency was created as to the funds collected, except to collect the certificates in the funds in which they were payable, and to hold the same subject to demand of the plaintiffs. 38 The court instructs the' jury if the jury believe, from the evi- dence, that the Bank received the proceeds of the certifi- cates of deposit sent by plaintiffs, and credited the plaintiffs with the same, the relation of debtor and creditor is created between the defendants and the plaintiffs, so far as to require the payment to plaintiffs of the same funds in which the certificates were pay- able, on the demand of the plaintiffs. 39 § 1005. Failure to collect — Negligence. The court instructs the jury that, if they believe the facts stated in the agreed statement, and also from the evidence in the cause that the plaintiff transmitted to the defendant as its corre- spondent in B, for collection the bill of exchange for $ , dated the of , 19 — , which has been offered in evi- dence, and that the defendant, as such correspondent, received and undertook and assumed to collect the same on the morning of 37— Phoenix Nat. Bank v. Taylor, v. Gage, 91 111. 328; Doppelt v. Na- 113 Ky. 61, 23 Ky. L. Rep. 2307. tional Bank of Republic, 74 111. App. 38 — Marine Bank of Chicago v. 429, aff'd 175 111. 432; Bowman v. Rushmore, 28 111. 463. First Nat. Bank, 9 Wash'. 614, 43 39— Marine Bank of Chicago v. Am. St. Rep. 870, 38 Pac. 211. Rushmore, 28 111. 463. See Cbmstock § 1005] Banks and Banking. 1267 the of , 19 — , and placed it in the hands of the wit- ness H for that purpose, and that said H was an officer or agent of the defendant, and that said H presented said bill of exchange to the said J. L. & Co., about — o'clock in the afternoon of the of , 19 — , and that the said J. L. & Co., on whom the same purports to have been drawn, were then in doubtful Credit, and that the said H then received from the said J. L. & Co., for said bill of exchange and other claims also in the hands of the defendant, the check on the M Bank for $ which had been offered in evidence, and gave up said bill of exchange to J. L. & Co., and that the latter marked said bills as canceled, and that the said M Bank was at that time within the same square with the banking house of the said J. L. & Co., and that the banking house of the defendant is several squares off from the latter and that the said check would have been paid by the M Bank if it had been presented any time between — and — o'clock in the said afternoon of the of , 19 — , and that said check was taken by the said H to the defendant, and the amount thereof placed by it to the credit of the plaintiff, and that the payment of said check was not demanded until a few minutes before or after — o 'clock in the afternoon of the of , 19 — , and if they shall also believe that at the time last meptioned there was a usage .among the banks of the city of B as between them and their correspondents abroad to get checks received for sight bills of exchange, when said checks were drawn by houses or individuals of doubtful credit paid or indorsed "good" before taking them back to the banks holding them for collection, then the plaintiff is entitled to recover in this action the amount of said bill of exchange ; provided that the jury find that the defend- ants in failing to have the said checks presented for payment or to be indorsed as good by the M Bank before — o'clock on the — of , 19 — , were guilty of a want of due care, skill, and diligence in their employment as collectors of the said bill of exchange, and that they also find that the said check if it had been presented for payment between the hours of — and — 1268 Fobms op Instructions. [§ 1005 o'clock on that day, would have been paid by the M Bank and the said draft collected. 40 D. LOANS AND DISCOUNTS. §1006. Usury. The court instructs the jury that in this state a bank is not permitted under the law to knowingly collect a greater rate of interest than — per cent per annum for the loan or use of money, and, in case a greater rate of interest has been knowingly charged by a bank, the person from whom same is collected is entitled to recover double the amount of interest so paid from the bank so knowingly collecting same, by suit brought within — years after the said collection. 41 E. ACTIONS. § 1007. Evidence — Presumptions— Knowledge on part of manag- ing director. The court instructs the jury that a presumption arises, in the absence of evidence to the contrary, that a managing director of a bank has knowledge of its doings and transactions, whenever by ordinary diligence he could have acquired the same, and whether or not such presumption is satisfactorily overcome in any case is for you. 42 40 — Merchants' Bank of Balti- woka v. McCoy, 42 OKla. 420, 14f more v. Bank of Commerce, 24 Md. Pac. 791. 12. 42 — Rattelmiller v. Stone, 28 41— Farmers ' Nat. Bank of We- . Wash. 104, 68 Pac. 168. CHAPTER LXV. BASTARDS. I. Illegitimacy in General. § 1008. Presumption of legitimacy. II. Proceedings Under Bastardy Laws. breaking of the engagement, then she cannot recover on said contract. That if the jury find that in , 19 — , the defendant offered himself in marriage, and was declined, then plaintiff can- not recover on said contract, though it should appear that she afterwards proposed to accept the offer, unless defendant assented to such subsequent acceptation. I suppose that, is true, gentlemen, that the contract must have been mutual between the parties. The law recognizes the right of a party to bring and prosecute an action for a breach of promise of marriage; that is a legal right, and as such, should be treated by all courts and jurors, and no prejudice, either for or against this kind of an action, should be allowed to sway your judgment or influence your verdict, but you should deal § 1167] Bbeach of Mabbiage Peomise. 1341 with this case as you would with any other. Apply, then, gentle- men, the principles of law already given you, and render such a verdict as shall accord with your judgment. Pass upon the evidence in the case. Take the ease and deal with it candidly, and render such verdict as shall satisfy your consciences. 22 § 1164. — Missouri. The court instructs the jury that if they find for the plaintiff, in determining the amount of damages she has sustained, they may take into consideration, as may appear from the evidence in the case, her mortification, injured feelings and affections; wounded pride ; length of the engagement ; the depth of her devo- tion; her lack of independent means; the defendant's wealth and the consequent loss of the marriage to plaintiff and her altered social position caused by defendant's conduct. 23 § 1165. Same — Same — Pecuniary loss. The court instructs the jury that they may consider the pecu- niary advantage to the plaintiff of the marriage; the money value or worldly advantage that the marriage would have given to the plaintiff; the advantage of such a domestic establishment as would be suitable to plaintiff as the wife of a person of the defendant's estate and station in life, and in considering such matters it should consider the wealth of the defendant as shown by the evidence. 24 § 1166. Same — Same — Injury to affections. The court instructs the jury that if plaintiff's affections were in fact implicated, and she had become attached to the defend- ant, the wound and injury to her affections should be com- pensated for. 25 § 1167. Same — Aggravation of damages — Rape. The court instructs the jury that testimony has been offered and admitted in evidence tending to show that some time after , 19 — , and within weeks after said date, the 22 — Miller v. Rosier, 31 Mich, 475. 24— McKenzie v. Gray, 143 Iowa See Mahiat v. Codde, 106 Mich. 387. 112. 23 — Fisher v. Oliver, 172 Mo. App. 25 — Stewart v. Anderson, 111 Iowa 18. . 329. 1342 Fobms of Instructions. [§ 1167 defendant, by force and against the will of the plaintiff did carnally know and debauch her. As to this evidence, you are instructed that the same cannot be considered by you in aggrava- tion of damages, if you find she is entitled to recover; neither can you consider the same in determining as to whether or not the plaintiff did make and enter into the verbal contract alleged by the plaintiff in her petition. 26 § 1168. Same — Same — Seduction. The court instructs the jury that it is not instructed as to what course the federal courts would pursue upon the question of whether or not seduction should be considered in aggravation of damages by any precedent that has come to my attention. In some states that question is not to be considered at all, but I think the current of authority is, and I shall adopt it for your instruction here, that in a case where a breach of promise of marriage is at issue, in which seduction has followed the making of the contract, that fact is proper to be considered by the jury by way of enhancing or enlarging damages. So, as there is something of that sort claimed in this case, I want this jury to go out of the box with a very clear understanding of what seduc- tion is. It is not sexual intercourse merely between a woman theretofore chaste and a man. It is not merely the despoiling of a woman's virginity, not merely the dragging the woman down from a life of chastity to unehastity, but it is the despoiling of a woman's virtue against her will, yielding to seductive influences on the part of the man which she cannot fairly withstand. A girl theretofore pure in act, then unspoiled in act, but coming to the sexual act willingly, consciously and in that mind participat- ing, is not seduced. So you may go to the circumstances which preceded the going of the plaintiff to ; you may consider the degree of intimacy between the parties prior to her going there, the brief association they had together, and the places in which and the circumstances under which they associated in before she went to , whatever those places and circum- 26 — Lauer v. Banning, 140 Iowa 319. § 1169] Bbeach of Mabeiage Peomise. 1343 stances you find to have been; you may consider the manner in which she was procured to go to ; you may consider her confessed deception of her mother, the distance she had to go, the knowledge of conditions when she got there, where she was and how she was surrounded by these men who were (one of them at least) a total stranger and the other of brief acquaint- ance, and then, gentlemen of the jury, you are permitted to draw from these circumstances and any other circumstances that in your judgment illuminate her mind and disposition such in- ferences as appeal to your judgment and determine whether the first act of sexual intercourse which she had with the defendant was an act of seduction or was an act which she could reasonably have anticipated would be one of the fruits of her trip to , and if you find it was the latter, if you find it was one which she could have and should have reasonably anticipated, with what knowledge of the defendant she had as you find it in this testimony, I say to you that that was not a seduction, no matter whether she had theretofore been pure or not. 27 § 1169. Same — Same — Failure to sustain defense of unchastity. The court instructs the jury that if they find for the plaintiff, they shall take in consideration, as may appear by the evidence, the length of the engagement; the depth of plaintiff's devotion, if any ; her loss of marriage ; her altered social condition, if any, caused by defendant's conduct; and if you believe from the evi- dence that defendant's attempt to prove unchaste or improper conduct with others on the part of the plaintiff was made with- out reasonable cause to believe that such charge could be proven, and you are satisfied that plaintiff is innocent of such charge, that fact shall be taken into consideration by the jury in aggrava- tion of plaintiff 's damages ; and you shall assess her damages at such amount as you believe she should recover, not exceeding dollars. 28 27 — Young v. Corrigan, 208 Fed. 28 — Broyhill v. Norton, 175 Mo. 431. 190. 1344 Forms op Instructions. [§ 1170 § 1170. Same— Mitigation of damages— Character and reputation of plaintiff. §1171. — Illinois. The court instructs the jury that even if they believe, from the evidence, that the alleged contract of marriage is subsisting, yet the jury will take into consideration the character and habits of the plaintiff, and if they believe, from the evidence, that she was addicted to lewdness, this circumstance should be considered in estimating the damages, and no person guilty of such practices ought to recover as much damages as a pure-minded and virtuous person. 29 §1172. —Oregon. The court instructs the jury that,, if you find the contract was made, and has been broken, and consider the question of damages you may take into consideration the character of the plaintiff. If it is subject to any criticism on your part, and if she is a woman of coarse manners, coarse in her associations, and im- prudent, careless and reckless in regard to her conduct and demeanor, these circumstances you may take into consideration in assessing damages; such a woman is not injured to the same extent by a breach of promise of marriage that one more con- fiding, retiring, and modest would be. Understand that I am passing no judgment upon the plaintiff or suggesting that you shall pass any judgment upon her, but I wish you to understand that if you think she deserves consideration of that kind, it is your privilege and duty to give such consideration to that phase of the matter as you think it deserves. 30 § 1173. — United States. The court instructs the jury that to some extent, as you have already seen, the character of the plaintiff is proper for you to know in determining whether or not there was a contract. It is also essential in meting out justice between the parties to this ease, if you get to the point where you think you should award 29— Kantzler v. Grant, 2 111. App. 30— Kelley v. Highfield, 15 Ore. 277, 23B. H Pac. 744. § 1174] Beeach of Maeeiage Peomise. 1345 damages to the plaintiff against the defendant, that you should know both the character and reputation of the plaintiff, the woman, at or about the time of the alleged breach of contract, because damages in a ease of this kind depend in some measure upon the relation which the plaintiff sustained in the community in which she lived and depend in some measure upon her capacity to suffer from the affront which a breach would bring to her. You will observe that charaater is what a person actually is. Reputation is what the community in which that person lives thinks such a person is — the estimate that the community places upon such a person. In a breach of promise ease the woman may be damaged in her character by the breach and she may be damaged in her reputation, and you cannot know the extent of damage to either character or reputation until you know what they were before the breach. 31 §1174. Same — Exemplary damages — Failure to sustain defense of unchastity. The court instructs the jury that in cases of this kind the dam- ages are always in the discretion of the jury and in fixing the amount they have a right to take into consideration the nature of the defense set up by the defendant, and if the jury believe from the evidence that the defendant promised marriage to the plaintiff and then refused to carry out his promise, and if the defense set up by the defendant in this case is not sustained by the evidence (thp defense being injurious to the reputation of the plaintiff) then the jury will be justified in giving exemplary damages. 32 31 — Young v. Corrigan, 208 Fed. 32 — Southard v. Eexford, 6 Cow. 431. (N. Y.) 254. Blashfield Vol. 1—85 CHAPTER LXXII. BREACH OF THE PEACE. § 1175. What constitutes crime — Vile epithets. § 1176. Defenses — Threatening, abusive or discourteous language of third person. * § 1177. Bond to keep the peace — Breach — Defenses — Insanity. Cross-References. See Assault and Battery; Disturbance op Public Assemblage; mat- ters pertaining to law of crime in general, see Criminal Law. § 1175. What constitutes crimen — Vile epithets. The court instructs the jury as a matter of law, that a person who, on the public streets of a city, in the presence of several persons, applied to another vile epithets, with the intention of annoying, offending and disturbing such person, commits a breach of the peace. 1 § 1176. Defenses — Threatening, abusive or discourteous language of third person. The court instructs the jury that if A was at the time road overseer, and defendant and others were hands working on the public road, defendant was bound to perform all reasonable du- ties required of him by such road overseer, and, if defendant failed or refused to perform any reasonable duty as directed by said overseer, said overseer had the right to discharge him, and that the defendant could not justify himself by cursing or abus- ing said overseer for discharging him, but if, in that connection, the jury should find that A used threatening, abusive, or discour- teous language to the defendant, or otherwise treated him in an unreasonable manner, they may take such words and conduct on 1 — State v. Appleton, 70 Kan. 217, 78 Pac. 445. (1346) § 1177] Bbeach op the Peace. 1347 his part in mitigation of the penalty of the offense, if they find defendant guilty. 2 § 1177. Bond to keep the peace — Breach — Defenses — Insanity. The court instructs the jury that if the act of in assaulting the party, which is admitted to constitute a breach of the bond, was caused by mental disease or unsoundness which dethroned his reason and judgment with respect to that act, — which destroyed his power rationally to comprehend the nature and consequence of that act, and which overpowering his will irresistibly forced him to its commission, then he is not legally answerable therefor. But if you believe from all the evidence and circumstances that he was in possession of a rational intel- lect and sound mind, and allowed his passions to escape control, then though passion may for the time being have driven reason from her seat and usurped it, and have urged him with a force at the moment irresistible to desperate acts, he cannot claim for such acts the protection of insanity. 3 2— Watkins v. State (Tex. Cr. 3— State v. Geddis, 42 Iowa 264. App.), 44 S. W. 507; Christmas v. Court holds that there is no distinc- State (Tex. Cr. App.), 44 S. W. tion between civil and criminal causes. 175. CHAPTER LXXIH. BRIBERY. § 1178. Evidence — Weight and sufficiency— Receipt of money by defendant. Cross-references. See Extortion; matters pertaining to law of crime in general, see Crimi- nal Law. §1178. Evidence — Weight and sufficiency — Receipt of money by defendant. The court instructs the jury that it is the law generally that any act by an assumed agent, and a recognition of his authority by the alleged principal, may, in a proper case, prove the agency to do other similar acts. And if you find in this case that A was authorized or directed by defendant to collect in his behalf money from one or more of these women, other than B, such fact is proper to be considered in determining whether or not defend- ant authorized A to collect money from her. Indeed, if you find that A had general authority to collect protection money from abandoned women, or from a certain class of them, which included B, if in fact he received it, he received the same for the de- fendant, and in that event will find that he himself received the money. 1 1 — State v. Ames, 90 Minn. 183. (1348) CHAPTER LXXIV. BRIDGES. I. Construction and Maintenance. § 1179. Liability for cost — Bridge on town line. § 1180. Defective construction — Damage to mill property caused by washing away of bridge. § 1181. Unlawful destruction of bridge — Criminal liability. II. Injuries to Person or Property of TraVeler. § 1182. Eights of, and restrictions upon travelers in general — Bicyclists. § 1183. Uses of bridge for which provision to be made. § 1184. — Michigan. §1185. — Vermont. § 1186. Guard rails — Necessity. § 1187. Keeping bridge in repair — Duty — Municipal corporations. § 1188. Same — Care required in general. § 1189. — Indiana. §1190. — Iowa. §1191. — Michigan. § 1192. — Texas. § 1193. — Vermont. § 1194. Same— Notice of defects. § 1195. — Georgia. § 1196. — Indiana. § 1197. Contributory negligence. § 1198. — Michigan. § 1199. — Nebraska. § 1200. — Pennsylvania. § 1201. Actions for injuries — Questions for jury — Necessity of guard rails. § 1202. Same — Same — Character of use to which bridge put. Cross-Beference. Acceptance of dedication, see Dedication, § 2705. I. Construction and Maintenance. § 1179. Liability for cost — Bridge on town line. The court instructs the jury that the statute of this state does not confer authority upon the commissioners of highways of one (1349) 1350 Forms of Instructions. [§ 1179 town to compel the commissioners of an adjoining town to repair or erect a bridge upon the town line or pay one half of the cost of such bridge, after it has been constructed or repaired. 1 § 1180. Defective construction — Damage to mill property caused by washing away of bridge. The court instructs the jury that if they find that on the day of , 19 — , the plaintiffs were the owners of the property situated on Creek, described in offered in evidence, with buildings and mill-dam as part thereof, and which has existed for over years, and that up to the year the stream was crossed by the county road at a ford below the dam, and that about that year the defendants changed the location of the county road so as to cross the stream by an iron bridge set upon abutments connected by wing walls with the banks on either side of the stream, and if the jury shall be- lieve from the evidence that said abutments or either of them were improperly and insecurely erected for the purposes for which they were designed, and that in building said abutments they were not built as high, or with such space between as was reasonably necessary in times of freshet, and that owing to such defective construction (if they find such) or insufficient space provided for venting the water one of said abutments gave way and the bridge was carried off on the of , 19 — , and was lodged upon the plaintiffs' mill-dam, and that thereby said mill-dam was washed out and injuries sustained by the said mill and by the washing away of their buildings, then the plaintiffs are entitled to recover the losses occasioned thereby and sustained by them in the destruction of their property and business, notwithstanding the jury may be of the opinion that the water, at the time was higher than usual in times of freshet. 2 The court instructs the jury that even if they find that the flood which carried away the bridge was of unusual or unprecedented height, still if they further find that but for the improper and 1 — Highway Com'rs Tonti Tp. v. 2 — County Com'rs Hartford Co. v. Highway Com'rs Foster Tp., 152 111. Wise, 71 Md. 43. App. 536. § 1181] Bridges. 1351 negligent construction or condition of the bridge, if they so find, the disaster would not have occurred, then the unusual or unprec- edented height of the flood is no defense. 3 The court instructs the jury that if they find that the bridge above was carried away by a flood on the day of , 19 — , and in passing down the stream carried away plaintiffs' dam, then plaintiffs are entitled to recover such sum as will compensate them for the injury sustained and loss suffered, provided the jury also find that the location, construc- tion or condition of the bridge was negligent, and that the carry- ing away of the bridge was in consequence of such location, construction or condition. 4 § 1181. Unlawful destruction of bridge — Criminal liability. The court instructs the jury that before you can convict you must be satisfied from the evidence beyond a reasonable doubt of the truth of the following propositions: 1. That the bridge in question was a public bridge. 2. That the road upon which it was placed was a public road at the time of the alleged destruction. 3. That the said road was properly established by the proper legal authorities, or was a public road by user, and was such pub- lic road at the time of the alleged destruction. 4. That the defendant, , willfully and unlawfully and maliciously did cut and destroy the said bridge with intent to injure the same. 5 / The court instructs the jury that you may, in endeavoring to learn whether or not the defendant knew the bridge was a public one and located upon a properly established public road, con- sider that the defendant received damages from the county of W. for the land taken to constitute the part of the road upon which the bridge was located. 6 3 — County Com'rs Hartford Co. v. 5 — O'Dea v. State, 16 Neb. 241. Wise, 71 Md.,43. 6— O'Dea v. State, 16 Neb. 24*1. 4 — County Com'rs Hartford Co. v. Wise, 71 Md. 43. 1352 Forms of Instructions. [§ 1182 II. Injuries to Person or Property of Traveler. §1182. Rights of, and restrictions upon travelers in general- Bicyclists. The court instructs the jury that it is the law of that persons using bicycles on the public highways and bridges of the state are entitled to the same rights and subject to the same restrictions in the use thereof as are prescribed by law in the case of persons using carriages drawn by horses. 7 The court instructs the jury that the plaintiff in the use of her bicycle on the bridge in question was not bound to use the car- riage drive, but had the right to go over any part of the bridge open for travel. 8 § 1183. Uses of bridge for which provision to.be made. § 1184. — Michigan. The court instructs the jury that if they find that the bridge in question was reasonably safe, and fit for ordinary travel, — for the ordinary modes of travel in use at the time of its con- struction, — the city cannot be held liable for any injury occa- sioned by an unanticipated and extraordinary use of the same. 9 §1185. —Vermont. The court instructs the jury that the town was bound to pro- vide a bridge sufficient only for the travel that passed over it, or might be expected to pass over it, and that the greater the travel, the better it should have been kept, but whether the travel was much or little, it was the duty of the town to keep it in good and sufficient repair for the amount and kind of travel that did pass over it, or that might fairly be expedted to pass over it. 10 § 1186. Guard rails — Necessity. The court instructs the jury that the county commissioners were bound to foresee and reasonably provide against a common danger to ordinary travel on the bridge. It may be taken as a 7 — Strader v. Monroe, 202 Pa. 626. 10— Graves v. Town of Waitafield, 8— Strader v. Monroe, 202 Pa. 626. 81 Vt. 84. 9 — Woodbury v. City of Owosso, 64 Mich. 239. § 1187] Beidges. 1353 well-known fact that bicycles when they strike obstructions in their path, even in the control of expert riders, are apt to deviate from their course and take a sudden and erratic direction, unex- pected by the riders; just as no one can foretell the conduct of a frightened horse. The presence of guard rails or barriers at the point of the accident would have been a protection from the danger of going over the bridge, no matter what the movements of a bicycle would be. The aptness of bicycles to deviate from their course and to take sudden and unexpected directions when meeting obstructions in their path was* ordinary knowledge and to be expected. If it were otherwise it would be extraordinary, because contrary to common observation and experience. The county commissioners should have guarded against that which was to be expected, and it will not excuse the negligence of the commissioners, or make that negligence the remote cause to assert that they could not foresee the peculiar aptness or freak of a bicycle to take sudden and unexpected courses when meeting obstacles in its path. The injury in the case must be the natural and probable consequence of the neglect to have had up guards or barriers, and the consequence is such as, under the surrounding circumstances of this case, might and ought to have been foreseen by the county commissioners. 11 The court instructs the jury that should they believe from the evidence that the plaintiff was not expert, or was inex- perienced in the use of the wheel, yet, she had a legal right to use the bridge in question, with her wheel, and it was the duty of the county commissioners to have anticipated such use and provided for the same; and their failure to do so was negligence and the plaintiff is entitled to recover, provided she was not guilty of contributory negligence. 12 ' § 1187. Keeping bridge in repair — Duty — Municipal corporations. The court instructs the jury that even if such bridge was in a public street, it must be conceded that it was built by private in- dividuals and was maintained by private individuals, in connec- tion with their mill, and that the city had refused to consider the 11 — Strader v. Monroe, 202 Pa. 626. 12— Strader v. Monroe. 202 Pa. 626. 1354 Forms of Instructions. [§ 1187 bridge a public structure, and although, built in the public street, if it was simply and solely an appendage to and only useful as connected with the mill of , to the public only as dealing with mills, and was not, during the time it has stood there and up to the time of the accident, useful to the public generally and used by them generally, in the course of ordinary travel along said street to and from places other than mills, then the city would not be liable for the inju- ries suffered by the plaintiff through the falling of said bridge. But on the other hand, if said bridge stood in the public highway and appeared to be a part thereof, and the approaches from the traveled part of the street led directly thereto and it appeared to any one traveling along the highway to be a part of the street in ordinary use, and if it had been and was in actual use and utility generally to the traveling public and used by the general traveling public, then the city, if it had erected at or near the bridge no visible sign or monument warning the public that such bridge was not a part of the street, was under a duty so long as it permitted the bridge to remain in and as a part of the street, subject to general use and utility, to keep the same or see that the same was kept, in reasonable repair, so that it would be reasonably safe and convenient for public travel. 13 § 1188. Same — Care required in general. §1189. — Indiana. The court instructs the jury that the board of commissioners of the defendant county are chargeable with knowledge of the tendency of timbers to decay and it is incumbent upon the com- missioners to use ordinary care in providing against the timbers in a bridge becoming unsafe because of the decay incident to age and long use. They are not bound, however, to do more than use ordinary care and diligence; and if they act with ordinary care and diligence there is no liability. 14 13— Detwiler v. City of Lansing, 95 14 — Apple v. Board Com 'rs Marion Mich. 484. Co., 127 Iiid. 555. §1191] ' Bridges. 1355 §1190. —Iowa. The court instructs the jury that the board of supervisors is charged by law with the duty of supervising and keeping the county bridges in repair. If the members of the board did not possess the requisite skill to discharge the duty of inspection, then it was the duty of the board to appoint or provide some one possessing such skill, and to have all county bridges under their care examined as frequently as men of ordinary prudence and care would deem necessary for the safety of the traveling pub- lic, and as experience demonstrated the necessity of examination, and if the board failed to do this, such failure would be negli- gence. 15 t §1191. —Michigan. The court instructs the jury that if you find the fact to be that when plaintiff's horse was being driven across the bridge on the day in question, the passage from the ; — to the approach was so steep that it was not reasonably safe, — whether the steep- ness was caused by the or by the as shown by the evidence, — but on account thereof the horse was overcome by the load, when he would not have been overcome if the in- cline had been more gradual, and shall also find that such incline might have been made easier, on the part of the city, by the exercise of reasonable care and skill, and that this steepness and condition caused the loss of the horse, then the city would be liable, provided the plaintiff and the driver were not guilty of want of ordinary care in the management of the horse and rea- sonable time and opportunity to put the bridge in a safe condition oceurred, as I have stated. 16 The court instructs the jury that a municipality, like the city of , must know what is going on and must act through its officers and agents, and through them it may know of the existence of a defect in a highway or bridge. And when such knowledge is gained by its officers or agents, the corporation may become liable for negligence in not making repairs where repairs 15 — Ferguson v. Davis County, 57 Ltd., v. City of St. Clair, 96 Mich. Iowa 611. 463. 16 — St. Clair Mineral Springs Co., 1356 Foems of Instrtjci'ions. [§ 1191 are needed. On the other hand, though they may not have notice and knowledge, a defect may exist and be unknown, and the corporation still be liable on the ground that the prime fault consists in being ignorant of the existence of the defect; for a want of knowledge may, under given circumstances, imply want of due care. The duty of a city is to exercise, through its officers and its agents acting for it, a reasonable and supervisory care over its highways and its bridges, and, within reasonable limits, be watchful of their condition and safety, and to see that they are kept in a reasonably safe condition for public work. A corporation is not bound to extraordinary care or extraordinary diligence, but only ordinary care and ordinary diligence. It is not an insurer of safety. It does not warrant or undertake against accidents and injuries. It only undertakes that the bridge which is to be crossed is reasonably or ordinarily safe for public travel. This question of want of reasonable care, or negligence, must be determined by the circumstances of each case. What circum- stances would be considered a want of ordinary care when applied to one bridge in one locality would not be so considered in the case of another bridge in a different locality. A bridge of long standing would require closer and more frequent examination than a new bridge. A bridge in a densely-populated community, upon a main thoroughfare, with daily heavy travel, would require more vigilance in its supervision and care than would a like bridge in a thinly-settled part of a township, or in a city with only a light or occasional travel. A difference, also, in the material out of which the bridge is constructed, or on which rests the flooring of the bridge, — whether the timbers used were suitable or otherwise, were of full length or shorter than they should be, — and the permanency of the construction, would all have to be considered by the jury in determining the question of ordinary care, or want of ordinary care. - I charge you that if you find that the bridge was defectively maintained, in the manner mentioned, and on that account the injury occurred, and the plaintiff was without fault on his part, and the jury find further that this defect in the bridge had § 1191] Bridges. 1357 remained and been in the condition complained of such a length of time that defendant should have known of it, then the plaintiff is entitled to recover. If you find the defects complained of, — that is to say, the liability of the planks and joists to move and drop off their supports by the jolting of passing teams and loads, — and this rendered the bridge unsafe for travel, and might have been discovered by an examination of the position of the planks and joists, then the city could not refuse to see what others could see, and they would be chargeable with negligence for not knowing these facts; and, if the plaintiff was injured without fault on his part, he ought to recover. If the jury find that the bridge in question was not in good repair and in a condition reasonably safe for public travel at the time of the accident, on which account the injury occurred, and the plaintiff was not in fault in going or driving his engine upon it, and the defendant ought to have known of the unsafe condi- tion of the bridge, then the plaintiff would be entitled to recover just damages. Before the , passage of Act , Laws of 19 — , there was no legal duty requiring a township, city, or village to keep in repair its highways and bridges, and no action could be . maintained for an injury suffered by reason of a defect in such bridge or highway ; but by the act of 19 — a duty was created on their part to maintain in a reasonably safe condition their highways and their bridges. But this act does not impose the duty to build new bridges of any kind. A municipal corporation is vested with certain legislative powers confined to the territorial limits of the city or corporation; and, when it has acted in determining the kind of bridge it will construct, the wisdom or correctness of such legislative determination cannot be considered or become a subject of review by a court or jury. Such determination is final. I therefore charge you, in this case, that the plaintiff can- not recover in this case upon the ground that the plan or method of constructing the bridge was not as good and durable as some other method or plan may have been, i The bridge was built in 19 — , when the municipality owed no 1358 Foems of Instructions. [§ H91 duty to the public or individuals to build bridges, and its action cannot be reviewed in this action. But the act of 19 — made it the duty of townships, villages, cities, and corporations to keep in good repair, so that they will be safe and convenient for public travel at all times, all public highways, streets, bridges, cross- walks, and culverts that are within their jurisdiction, and under their care and control, and which are open to public travel. But the statute also provides that, when an action is brought under this act, it must be shown that such township, village, city, or corporation has had reasonable time and opportunity, after such highway, street, cross-walk, or culvert became unsafe or unfit for travel, to put the same in a proper condition for use, and has not used reasonable diligence therein. That is the language of the statute which creates the duty and gives the right .action to the party injured, and this proviso is as important as any part of the act. Before the plaintiff can recover in this case, gentlemen, you must be satisfied, by a preponderance of evidence, — 1. That the plaintiff has sustained an injury. 2. That the injury was caused by the bridge being out of repair by reason of the defendant's neglect to keep such bridge in good repair, and in a condition reasonably safe and fit for travel ; and, also, that a reasonable time and opportunity, after such bridge became out of order and unsafe and unfit for travel, if you find it out of repair, had elapsed and expired, and that the defendant did not use reasonable diligence to repair and put the same in proper condition. This negligence urged against a township or city, and its liability, can only arise after it has had notice of the unsafe condition of the bridge, fir where the want of repair or bad condi- tion of the bridge by reasonable diligence could have been dis- covered, and where it continued for such a length of time that the want of knowledge on the part of the city would be regarded as negligence on its part. 17 17 — Woodbury v. City of Owosso, 64 Mich. 239. § 1193] Bridges. 1359 §1192. —Texas. The court instructs the jury that from the testimony they will determine whether the city authorities used that care and skill which a prudent man would ordinarily use in like circumstances in making and keeping the bridge as shown to have been on , 19 — , with the surrounding facts; and if they find such care and prudence to have been taken and used in keep- ing said bridge in the dimensions shown, looking to all the cir- cumstances, — that is, if they find that the bridge was reasonably safe and sufficient for the public, — then they will find for the defendant. 18 §1193. —Vermont. The court instructs the jury that it was the duty of the town to keep this bridge reasonably safe for the amount and kind of travel that might fairly be expected to. pass over it, and so that travelers might be reasonably safe from the consequences of such accidents as might justly be expected occasionally to happen there. This duty, as affecting' the town's liability to pay dam- ages for injuries occasioned by defects in the bridge, is not measured by the exercise of ordinary care and diligence on the part of the town in respect of keeping the bridge in repair; nor, on the other hand, is the town liable absolutely as an insurer for damages resulting by reason of its insufficiency and want of repair. The statute imposed the duty of keeping this bridge in good and sufficient repair. If the town is chargeable with any fault in respect of this duty, the liability attaches, if the plain- tiff's case is otherwise made out, and the town is liable for acci- dents and injuries caused by reason of defects existing therein through the fault of the town, for against such accidents and injuries the town is an insurer, and this, without notice to it, or regardless of the question of neglect. If the plaintiff, being free from fault on her part that contributed thereto, or if her husband was free from fault on his part that the law will impute 18 — Keating Implement & Machine Co. v. Marshall Elec. Light & Power Co., 74 Tex. 605. 1360 Forms of Instructions. [§ 1193 to the plaintiff, if, in the absence of any such fault, the plaintiff received injury that was-the combined result of such an accident as might justly be expected to happen there, and the insufficiency or want of repair of the bridge, the town is liable. 10 § 1194. Same— Notice of defects. §1195i —Georgia. The court instructs the jury that if there was a defect in this bridge because of a beam placed there by authority of the county authorities, and it was suffered to decay and become rotten, and on that account it became dangerous, then if the county authorities, the county commissioners, had notice of it, or either of them, or if that condition remained for a sufficient length of time for them to discover it in the exercise of ordinary care, which would be notice to them, and if the plaintiff was injured on account of. the defect, she would be entitled to recover. 20 §1196. —Indiana. The court instructs the jury that, if the defects in the bridge had existed for such a length of time that the defendant, by the exercise of reasonable diligence, could have known of its defective condition, they would be justified in finding that the defendant had notice. 21 § 1197. Contributory negligence. §1198. —Michigan. The court instructs the jury that it was the duty of the plaintiff, as a matter of law, to provide herself with a reasonably safe conveyance when going upon the public highway, and that she should have a reasonably gentle and safe horse, and the duty was upon her to exercise reasonable care and prudence in driving along this highway and over this bridge; and, if she failed or neglected to observe any of these precautions, she is, in law, guilty of what is known as "contributory negligence," and she 19 — Graves v. Town of Waitsfield, 21 — Board Com'rs LaPorte Co. v. 81 Vt. 84. Ellsworth, 9 Ind. App. 566-. 20 — Butts County v. Hixon, 135 Ga. 26. § 1199] Bkidges. 1361 cannot recover in this case. "Contributory negligence" means that by her own carelessness or negligence she has contributed to her own injury. And, if she has done that, under the law she is not entitled to recover at all, as you cannot apportion the negli- gence. Now, the mere fact that the plaintiff might have seen this hole in the board when she drove over it in the forenoon of that day would not, of itself, constitute her guilty of contributory negligence in endeavoring to pass over that bridge again that evening. You have a right to consider the fact, to say whether, under the evidence, a reasonably careful and prudent person would have endeavored to cross that bridge, as she did, in the evening, knowing of the existence of the hole (if you find there was one, and she knew of its existence). And if you find that a reasonably careful and prudent person would not, having the knowledge she had, have offered to pass over that bridge, as she did on her return, then that would amount to contributory negli- gence on her part. Having a knowledge (if you find she had) of the fact that there was a. hole in the bridge, then it became incumbent upon her to exercise more care and caution in crossing the bridge the second time than she would have otherwise been called upon to do. In other words, if she knew there was some danger in crossing the bridge, — if she realized that, — with the hole in it, then she would be expected to exercise care and caution proportionate to the risk she ran. 22 §1199. —Nebraska. The court instructs the jury that if you find from the evidence that the bridge in question was in an unsafe condition, and if you further find that the deceased, A, knew of such unsafe condition or had reason to know that the stringers on said bridge were cracked or broken by a previous strain, then you are instructed that the deceased would be negligent in not examining said bridge before he drove upon it. 23 22 — Bratfisch v. Township of Ma- 566, distinguished in Nelson v. City son, 120 Mich. 323. of Kockford, 186 111. App. 288. 23 — Seyfer v. Otoe County, 66 Neb. Blashfield Vol. 1—86 1362 Forms or Instructions. [§ 1200 §1200. —Pennsylvania. The, court instructs the jury that if the plaintiff knew of the existence of the obstruction, the plank on the bridge, or saw it before she reached it, or was careless in not observing it, and then carelessly or imprudently ran into it or on it and the accident resulted from such carelessness and imprudence, then she cannot recover. She must show you that she was reasonably careful and prudent as she rode across that bridge at the point of the accident. She must satisfy you of that first. If she has, then you may proceed to the second question. 24 §1201. Actions for injuries — Questions for jury — Necessity of guard rails. The court instructs the jury that it was the duty of defendant, in erecting and constructing the bridge in question, over and across a public street in a city, to so erect and construct said bridge as to make the same reasonably safe for travel and use, for all persons over the same on foot or otherwise, as well in the night as in the daytime; and, if t?he jury believe from the fevidence that a railing or other guard was necessary on the sides if the bridge, to protect foot passengers by day or by night from the danger of a fall from the bridge, then it was the duty of defendant to cause to be provided and constructed on the side of the bridge such railing or other sufficient guard, to give pro- tections against such danger or fall from the bridge- and the coUrt instructs the jury, that the question whether such railing, or other guard, was necessary, is not a question for the court to decide, but a question for the sole finding and determination of the jury; and unless the jury find from the evidence that such railing or guard was so necessary for the reasonable safety of persons passing over the bridge, and that defendant failed to provide the same, plaintiff is not entitled to recover in this action. But if the jury find from the evidence that such railing or guard on the sides of the bridge was necessary for the reasonable safety of passengers, by night or by day, and that defendant failed and neglected to provide the same ; and further find that plaintiff, on 24r— Strader v. Monroe, 202 Pa. 626. § 1202] Bridges. 1363 the night of the , was passing along a public street of, said city, leading to or over said bridge,, observing and using ordinary and reasonable care to pass and go over said bridge safely, when, through the fault and negligence of defendant in failing to have such railing or other guard along the side of said bridge, he stepped or fell from said bridge into the below, and was thus hurt and injured, — in such a case the jury will find for plaintiff (the amount sued for). 25 § 1202. Same — Same — Character of use to which bridge put. The court instructs the jury that in maintaining a bridge for public use the county is not limited in its duty by the ordinary business use of the structure, nor is it bound to provide for the support of extraordinary or unreasonably heavy loads, but it is only required to provide what may be fairly anticipated for the proper accommodation of the public at large in the various occupations which from time to time may be pursued in the locality where the bridge is situated. "Whether or not the load which the deceased, A, drove on the bridge in question was an extraordinary or unreasonably heavy load is a question for you to determine from the evidence before you. 26 25 — Loewer v. Sedalia, 77 Mo. 431. 566, distinguished in Nelson v. City of 26— Seyfer v. Otoe County, 66 Neb. Eockford, 186 111. App. 288. CHAPTER LXXV. BROKERS. I. Employment. § 1203. Existence of relation in general. II. Duties and Liabilities to Principal. § 1204. Care and diligence. §.1205. Action for adverse party. § 1206. Fraud. § 1207. Loans. § 1208. Margin transactions. § 1209. — Maryland. § 1210. — New York. § 1211. Individual interest in transactions — Sale by broker to employee. § 1212. Same — Purchase by broker, employed to buy, from himself. § 1213. Actions by principal against broker — Questions for jury. III. Compensation. § 1214. Eight to compensation in general. i § 1215. — Colorado. § 1216. — Kentucky. § 1217. — Texas. § 1218. Contract of broker with principal — In general. § 1219. Same — Necessity. § 1220. — Colorado. §1221. —New York. § 1222. Same— Implied contract. § 1223. Revocation of agency — In general. §1224. Same — Notice. § 1225. Procuring cause of offer or of contract by third person. § 1226. — Illinois. § 1227. — Iowa. § 1228. — Maryland. §1229. — Massachusetts. § 1230. — Missouri. §1231. —New York. §1232. — Washington. § 1233. Dealings by principal through other agent— In general. (1364) Bkokebs. 1365 \ 1234. — Illinois. g 1235. — Missouri. 5 1236. — New York. § .1237. —Washington. j 1238. Dealings by principal directly with third person — In general. j 1239. — Kansas. \ 1240. — New York. \ 1241. Same — Abandonment of negotiations by broker. * j 1242. — Massachusetts. J 1243. — Mississippi. , ! 1244. — New York. j 1245. Failure of principal to accept offer or perform contract — In general. j 1246. — Colorado. |1247. —Illinois. i 1248. — Kansas. \ 1249. — Maryland. ! 1250. — Missouri. ] 1251. — New York. j 1252. Bad faith, fraud or misconduct of broker — In general. 5 1253. — New York. i 1254. — Oklahoma. i 1255. Same — Acting for adverse party. S 1256. — Massachusetts. ) 1257. — New York. i 1258. — Oklahoma. 5 1259. Same — Concealment of offer. j 1260. Same — Attempt to induce principal to accept amount less than that offered. 5 1261. Same — Alteration of contract. j 1262. Eatification by principal — Departure from instructions, j 1263. Estoppel of broker — To allege agency of third person, i 1264. Reimbursement for advances and losses, i 1265. — Maryland. J1266. —New York. i 1267. Actions— Parties— Plaintiff. i 1268. Same — Issues and proof. i 1269. — Colorado. 11270. — Kansas. i 1271. — Maryland. i 1272. — Nebraska. i 1273. — New York. i 1274. — United States. i 1275. Same — Presumptions and burden of proof — In general. i 1276. Same— Same — Fraud. ;■ 1277. Same — Measure of recovery. i 1278. — Iowa. : 1279. — Maryland. 1366 Foems of Instructions. [§ 1203 IV. Rights and Liabilities of Third Persons. § 1280. Notice of broker's agency. § 1281. Payment to broker. Cross-Eeferences. See Agency; Boards or Trade; Factors. I. Employment. § 1203. Existence of relation in general. The court instructs the jury that this suit was brought by- plaintiffs to recover the price of a car of iron sold to defendant and that defendant admits the liability for the iron but pleads a counterclaim for damages for an alleged failure on the part of plaintiffs to punch the iron in question in accordance with direction furnished to T, who the defendant says was the agent of the plaintiffs. Plaintiffs claim that T was the agent of defendant and that they punched the iron as directed by T. The court instructs the jury that if they find in this case that the defendant first employed the broker, T, or first set him in motion on the business involved in this controversy, you are instructed that he was and remained the agent of the defendant so far as any agency resulted from the above facts, and that any mistakes which he may have made in conveying to plaintiff the directions of the defendant as to the manner of punching these rails, are mistakes of defendant 's own agent and plaintiffs are not responsible there- for. 1 II. Duties and Liabilities to Principal. § 1204. Care and diligence. The court instructs the jury that if they believe from the evidence that defendants (were employed as custom-house brokers by the plaintiff to enter imported goods as alleged in the declara- tion, and that the day before an increased duty came into effect, the custom house was to be kept open until instead of closing at p. m. as was usual, to permit of the entry of goods 1 — Schlesinger v. Texas, etc., E. Co., 87 Mo. 149. § 1206] Bkokeks. 1367 then in port or arriving during the day, and if the jury believe from the evidence that plaintiff's goods were in port on such day, and that by the exercise of reasonable care the defendants could have ascertained that the custom house was to be kept open until , but failed to ascertain such fact and so lost the oppor- tunity to enter the goods at the lower rate of. duty, then the defendants will be liable in damages for the excess of duties which plaintiff was obliged to pay because of defendants' failure to ascertain the fact that the custom house was to be kept open until , if the jury believe from the evidence that plaintiff was obliged to pay more duty because of defendant's failure to ascertain such fact). 2 § 1205. Acting for adverse party. The court instructs the jury that, if you shall find from the evidence, that J, as agent of the plaintiff, agreed with the defend- ants, that they should take and sell for plaintiff certain of the lots then being offered for sale by plaintiff, for a certain and definite price fixed and agreed upon by and between the defend- ants and said J, for which the defendants were to take and receive an agreed commission, viz., per cent, on the purchase price, and that this agreement was made within the scope of J 's author- ity, as agent of the plaintiff, and that defendants have sold said lots for the agreed price, and have fully accounted to plaintiff for the proceeds received therefor, less the stipulated commission, then they are not liable to plaintiff in this action, although they may have received- from the purchasers of said lots a sum for conducting the negotiations, receiving and paying out the notes and money, and superintending the transactions, and receiving the deeds and other papers for them. 3 §1206. Fraud. The court instructs the jury that if they find from the evidence that on , 19 — , the plaintiff authorized the defendants to buy wheat for him in quantities of ( ) bushels at a time whenever they bought at the same time and price ( >•) bushels 2 — Vernier v. Knauth, 7 App. Div. 3 — Alexander v. Northwestern (N. Y.) 57. Christian University, 57 Ind. 466. 1368 Fobms of Insteuctions. [§ 1206 for themselves, and not otherwise; and that plaintiff agreed to pay to defendants a commission of of one per cent, per bushel for all wheat so bought for him by them, and that defend- ants undertook and agreed that they would not buy ( ) bushels for plaintiff unless they at the same time and price bought ( ). bushels for themselves; and shall further find that defend- ants did thereafter on ■■ , 19 — , and , 19 — , respectively, buy for plaintiff ( ) bushels of wheat and charged the same to plaintiff, and that they represented to plaintiff that they had on eaeh of said occasions bought ( ) bushels for themselves at the same time and price as that #t which they bought for plaintiff; and shall find that the plaintiff, on the faith of such representation (should the jury find it to have been made) and in the belief that defendants had bought ( ) bushels for themselves as aforesaid, paid to defendants on account of the purchase of and of the depreciation, when sold,, in the value of said wheat bought as aforesaid for him (should the jury so find) the moneys testified to by plaintiff to have been paid ; and shall further find that in fact the defendants did not upon either of the said occasions buy ( ) bushels for themselves, then the plaintiff is entitled to recover the moneys so paid. 4 §1207. Loans. The court instructs the jury that a broker who takes collaterals for a loan of his principal's money, made by him without making inquiries or taking precautions which he could have taken to ascertain the genuineness or validity of the -collaterals, is negli- gent. 5 § 1208. Margin transactions. § 1209. — Maryland. The court instructs the jury that if they find that the plaintiff sent to the defendants, as margin on his contract With them, , and that defendants objected to receive such as margin, and that plaintiff thereupon promised to replace said 4— Burt v. Myer, 71 Md. 467. 5— Isham v. Post, 54 N. Y. St. 232, 71 Hun (N. Y.) 184. 1211] Beokees. 1369 with money and failed to do so before the of , that after such failure the plaintiff is not entitled to require the defendants to treat such as available margin provided the jury find the usage as to margins set forth in the defendants ' instructions. 6 §1210. —New York. The court instructs the jury that if they believe from the evidence that defendant was employed as stockbroker by the plaintiff as alleged in the declaration, and that defendant in the course of such employment purchased stock on account of the plaintiff, and that the defendant advanced the sum stated in the declaration aboye the margin furnished by the plaintiff, and that the stocks were declining in the market, and that there was a deficiency, and if the jury believe from the evidence that plaintiff failed to furnish the requisite margins to make up the deficiency when called on by defendant, then defendant was warranted in selling the stock on due notice. 7 The court instructs the jury that if they believe from the evidence that the defendant was a stockbroker as alleged in the declaration and sold stock short for plaintiff and made a contract with plaintiff, which required the plaintiff to keep on deposit with the defendant per cent, of the amount necessary to make good the short sale, according to the state of the stock market from time to time and to pay interest at the usual rates upon periodical balances stated, that then the defendant was bound to give to plaintiff reasonable notice of want of sufficient margin, and of an intention to buy in the stock and cover the short account if there was a short account, if the margins were not made good. 8 § 1211. Individual interest in transactions — Sale by broker to employee. The court instructs the jury that a broker employed to sell lands cannot sell to himself, and if the jury believe from the 6— Appleman v. Fisher, 34 Md. 540. 43 N. Y. St. 918 ; Lazare v. Allen, 20 7— Stewart v. Drake, 46 N. Y. 449. App. Div. (N. Y.) 616. 8— Rogers v. Wiley, 131 N. Y. 527, 1370 Forms of Instructions. [§ 1211 evidence that the plaintiff was employed by the defendant to sell the lands described in the declaration as alleged in the declaration, and that the plaintiff so employed sold the lands to his own clerk, who was employed in the affairs of the defendant relating to the land and who had by his employment acquired special knowledge concerning the land, then the sale cannot be sustained although the price was adequate. 9 §1212. Same — Purchase by broker, employed to buy, from himself. The court instructs the jury that the law does not permit brokers employed to purchase, to buy of themselves, and if the jury believe from the evidence that the plaintiff was employed by the defendant to purchase goods, and that the plaintiff in good faith and because plaintiff believed he could give the defendant a better bargain than, by buying elsewhere sold to the defendant his own goods, the defendant may refuse to be bound by the transaction. 10 § 1213. Actions by principal against broker — Questions for jury. The court instructs the jury that if they believe from the evidence that the defendant as stock-broker was carrying stocks for the plaintiff as alleged in the declaration under an agreement by which in case of a fall in the price, the plaintiff was to advance more margins to cover any deficiency, and that the defendant gave notice to the plaintiff that a further margin would be required, and that within two hours after giving the notice the defendant sold the stock for a deficiency of margin, and if the jury believe from the evidence that no time was specified in the agreement between plaintiff and defendant for compliance with the request for further margins then it is for the jury to decide whether reasonable time for performance by the plaintiff was given. 11 9— Gardner v. Ogden, 22 K Y. 327, 11— Hanks v. Drake, 49 Barb. (N. 78 Am. Dec. 192n. Y.) 186. 10— Levy v. Loeb, 85 N. Y. 365; Taussig v. Hart, 58 N. Y. 425. § 1215] Bbokebs. 1371 III. Compensation. § 1214. Bight to compensation in general. §1215. —Colorado. The Court instructs the jury that although they may find and believe from the evidence that the defendant did employ the plaintiff to assist him in securing the title to said lode claims, and did agree to pay the plaintiff per cent, on the purchase price at which said lode claims should be taken into a consolidated company, and that plaintiff did render services in an attempt to procure said lode claims to be put into said ^consolidated com- pany, yet if you further find and believe from the evidence that plaintiff and defendant were unable to agree with A and B in the purchase of said claims, and that other persons not co-oper- ating with defendant, thereafter initiated negotiations with said A and B for the purchase of said lode claims and put them into a consolidated company, you will return a verdict for the defend- ant, even though you may further find and believe from the evi- dence that the defendant on request, contributed to the purchase of said lode claims. 12 The court instructs the jury that although they may find from the evidence that the defendant employed the plaintiff to assist him in procuring title to the A and B mining properties for the purposes of consolidation, still if you further find from the evidence that the titles to such properties were acquired by some one other than the defendant herein, and that the defendant did not actively participate, or take part in acquiring the title to such properties, then your verdict must be for the defendant. 13 The court instructs the jury that if they find and believe by the preponderance or greater weight of the evidence that the defendant, in the summer of 19 — did employ the plaintiff to assist him in procuring the title to said A and B lode claims for the purpose of putting said claims with others, into a consolida- tion, and agreed to pay plaintiff per centum on the amount at which said claims might be purchased, that plaintiff agreed 12— Bailey v. Carlton, 43 Colo. 4, 95 13— Bailey v. Carlton, 43 Colo. 4, Pac. 542. 95 Pac. 542. 1372 Fobms of Instructions. [§ 1215 thereto, and immediately thereupon and thereafter did assist the defendant in procuring the title to said claims, and that defendant about , 19 — , while plaintiff was so assisting him, did secure from C and D, the owners of said lode claims, the title thereto, at a consideration of $ paid, and did put said claims into a consolidation with other contiguous claims, then the jury will find for the plaintiff and assess his damages at $ , together with per cent, per annum interest thereon from the time plaintiff made demand upon defendant for the payment of said sum to this date ; otherwise you will return a verdict for the defendant. 14 > ,\ §1216. —Kentucky. The court instructs the jury that if they believe from the evidence that the plaintiff, A, doing business as A & Co., procured or was the means of procuring a purchaser for certain property of the defendant on street in the city of — , or was the means of bringing such purchaser and seller together, and that a reasonable commission for such services was per cent, on the purchase price, which purchase price was • dollars ($ ) and that said defendant, B, agreed to pay the plaintiff for his services a reasonable commission for such service, or permitted the plaintiff to render such services, if they were rendered, under such circumstances as would lead a reasonably prudent man to believe that the plaintiff expected compensation therefor, then the jury will find a verdict for the plaintiff in the sum of dollars ($ ) , with interest from , 19 — ; otherwise, you will find a verdict for the defendant. 15 v § 1217. — Texas. The court instructs the jury that, if they find that plaintiff aided and assisted defendant A in his negotiations with B and his associates, they will find for plaintiff. 16 14— Bailey v. Carlton, 43 Colo. 4, 16— Alexander v. Wakefield (Tex. 95 Pac. 542. Civ. App.), 69 S. W. 77. , 15 — Bullock v. Menninger (Ky.), 125 8. W. 256. § 1221] Brokers. 1373 § 1218. Contract of broker with principal — In general. The court instructs the jury that one of the essential elements of a contract is an agreement or' meeting of the minds of the parties by an offer on the one hand and an acceptance on the other. This necessary element must be present in an implied con- tract as well as in an expressed contract. If it is absent in either no obligation is created, and if there was no meeting of the minds of the plaintiff and the defendant, that the plaintiff should sell the property and the defendant would pay a commission to plaintiff for making a sale, his efforts to sell said property would be voluntary, and in that event the defendant would owe plain- tiff nothing, though he might have found a purchaser ready, willing, and able to buy. In this connection you are instructed that if the commission for making said sale was not particularly stated or referred to, if the services of the plaintiff in making said sale were requested by the defendant, compensation will be presumed unless the agreement is between near relatives, when the law requires an express promise, to pay, although the amount may not be stated. 17 §1219. Same— Necessity. § 1220. — Colorado. The court instructs the jury that, when any real estate broker asks and obtains from an owner the price at which he is willing to sell or lease the same, this, without more, does not establish the relation of principal and agent, nor will the fact that the defendant subsequently consummated a bargain with a party in- troduced by plaintiff create a liability. 18 §1221. —New York. The court instructs the jury that if they believe from the evi- dence that plaintiff (was employed by a smelting company as agent, to procure contracts for smelting ore as alleged in the declaration, and that plaintiff induced the smelting company to smelt and refine the ore of the defendant and to buy the refined 17— Carl v. Wolcott, — Tex. Civ. 18 — Duncan v. Borden, 13 Colo. App. — , 156 S. W. 334. App. 481, 59 Pac. 60. 1374 Forms of Instructions. [§ 1221 product from the defendant, and that' the plaintiff acted solely in the interest of the smelting company by advising the smelting company how to obtain the refined product at the lowest price, and if the jury believe from the evidence that there was no employment of the plaintiff by defendant, then the plaintiff can- not recover commissions from the defendant on account of the sale of the ore). 19 § 1222. Same — Implied contract. The court instructs the jury that defendants are liable for plain- tiff's services if of such character and rendered under such circum- stances as would indicate to an ordinarily intelligent business man that they were not performed gratuitously, and that com- pensation was expected therefor. 20 § 1223. Revocation of agency — In general. The court instructs the jury that if the defendant employed plaintiff as a real estate agent to sell his lands, and agreed to pay plaintiff a certain commission, and that later, on the day of -, 19 — , and before a purchaser ready, will- ing and able to purchase had been produced to defendant, or a written contract secured by plaintiff for said sale, this defendant notified plaintiff that he would after : , 19 — , take said lands from his list, and that he need make no further effort to sell same, then you must find for the defendant. 21 The court instructs the jury that if the defendant agreed to pay plaintiff a commission of per cent, for selling his farm of acres at $ per acre; that plaintiff, as de- fendant's agent, entered into a verbal contract with A and B about the day of , 19 — , to sell them the land at said price, on the terms agreed upon by plaintiff and de- fendant, and that afterwards, on the day of , 19 — , the said A and B entered into a written contract with plain- 19 — Harnickell v. Parrot Silver & 21 — Kesterson v. Cheuvront (Mo. Copper Co., 117 N. Y. 644, 27 N. Y. App.), 70 8. W. 1091. St. 697. 20— Miller v. Early, 22 Ky. L. Eep. 825. § 1226] Brokers. 1375 tiff to buy the land at said price on said terms; and that the said A and B were financially able to execute said contract, — then the jury will find for the plaintiff in the sum of $ , although the jury may further believe from the evidence that between the time of making said verbal contract, if any was made, the defendant notified the plaintiff that he had terminated his agency. 22 § 1224. Same — Notice. The court instructs the jury that if they believe from the evi- dence in the cause that the defendant, A, employed the plaintiff, B, to sell his farm for him and agreed with him if he would sell it for $ per acre he would give him a commission" of per cent on the total amount of the sale, then said B would have been entitled to reasonable notice taking into consideration the condition and situation of the parties, of the revocation of said agency, and it would be too late for the defendant, A, to revoke it, or terminate it after the negotiations with the purchaser had begun, which were finally consummated, if you so believe they were 23 § 1225. Procuring cause of offer or of contract by third person. §1226. —Illinois. The court instructs the jury that if they believe, from the evi- dence, that D., as the representative, broker or agent of the defendant, opened negotiations with M. for the sale to him of the property in question, with the knowledge and permission of the defendant, and that the plaintiffs, being advised of D.'s employment and action, afterwards having authority from the defendant to find a purchaser for the same property, endeavored to make a sale thereof to said M., but were not instrumental in so doing, then the plaintiffs are not entitled to compensation for their services in endeavoring to make said sale, even though the jury may further believe from the evidence that the defendant, through the instrumentality of D., acting independently of said 22 — Kesterson v. Cheuvront (Mo. 23 — Sallee v. McMurry, 113 Mo. App.), 70 S. W. 1091. App. 253. 1376 Forms of Instructions. [§ 1226 plaintiffs, afterwards succeeded in selling said property to said M. One claiming a commission for the sale of real estate cannot rightfully claim the benefit of introducing to the defendant a purchaser for his property who had already been introduced to him as such by another party, with and through whom negotia- tions were already in progress and were continued to a consum- mation of the sale. 24 §1227. —Iowa. The court instructs the jury that if you find that said pur- chasers went to county, , by reason of the introduc- tion to A, and for the purpose of examining the lands which the said A had for sale, and for the purpose of dealing with him, and if you find the said A participated in the conduct of the business resulting in the sales, then you will find said sales were made by A within the terms and meaning of the contract. 25 § 1228. — Maryland. The court instructs the jury that if they shall find from the evidence that the plaintiffs were employed by the defendant as real estate brokers to sell for the defendant his house situated on the in city and if the jury shall find from the evidence, that there was a custom among the brokers in city, by which, if a real estate broker is employed to sell property, he undertakes to introduce to the seller a pro- spective purchaser and if the prospective purchaser subsequently purchases the property at a price acceptable to the seller, and the purchase is induced by. the introduction of the purchaser by the broker to the seller, then the broker becomes entitled to his commissions, and if the jury shall find from the evidence that the defendant at the time of said employment, had been largely engaged in buying and selling real estate and had bought and sold through the agency of real estate brokers and that plaintiffs after their said employment, if the jury shall find that they were employed, brought together the said defendant and one C, and that C, afterwards within a reasonable time actually purchased 24 — Pessenden v. Doane, 188 111. 25— Murphy v. Hiltibridle, 132 Iowa 228. 114. § 1231] Brokers. 1377 the said property from the defendant and that the procuring cause of the purchase by C, was the introduction of C, to the defendant by plaintiff, then plaintiffs are entitled to recover such commissions as the said jury shall find usual and customary with interest in their discretion from the date of the commencement of said sale and it is immaterial whether or not the services of plaintiff so rendered were actually beneficial to said defendant and it is immaterial at what price the property was actually sold except in calculating the amount of commissions. 26 §1229. —Massachusetts. The court instructs the jury that if the sale was due to the interposition of A and it would not have taken place except for him, and he brought it about, then the plaintiff would not be entitled "to recover; but that if his employment with reference to B had not been terminated, they would be justified in finding that he was the efficient cause of the sale if they were satisfied that it was in consequence of what he did chiefly and principally, though not absolutely and entirely, that the sale was made. 27 §1230. —Missouri. The court instructs the jury that it was not necessary, that the plaintiff, A, should have negotiated the terms of said sale with the purchaser, nor need he actually produce the purchaser in person, if he was the procuring cause of the purchaser being pro- duced to the defendant, and if you believe the purchaser so pro- duced was able and willing to take the land and pay for it at the price and sum of $ per acre, then said A was entitled to commission provided the defendant contracted with him as set forth in above instructions. 28 § 1231. — New York. The court instructs the jury that the mere fact that the broker obtains a more advantageous offer than the one finally accepted by his employer, does not entitle him to commissions, and that if the jury believe from the evidence that (the plaintiff was 26— Blake v. Stump, 73 Md. 160, 28— Sallee v. McMurry, 113 Mo. 10 L. E. A. 103n. App. 253. 27— Woods v. Lowe, 207 Mass. 1. Blashfield Vol. 1—87 1378 Foems op Instructions. [§ 1231 employed by the defendant as alleged in the declaration to sell the goods described in the declaration, and the defendant fixed a price at which the goods were to be sold, and that plaintiff obtained an offer of a price lower than that fixed by the defend- ant, and that meanwhile defendant accepted an offer lower still from another person, plaintiff is not entitled to commissions) . 29 The court instructs the jury that to entitle a real estate broker to commissions, he must be the procuring cause of the sale. The broker may devote his time and labor and expend his money, he may have introduced parties to each other who otherwise would never have met, he may have created impressions which under later and more favorable circumstances, materially assist in the consummation of the sale, and yet not be entitled to commissions, if his principal has acted in good faith and (if you believe from the evidence that the plaintiff was employed by the defendant to sell the property described in the declaration as alleged in the declaration and that the plaintiff listed the property on his books and told a friend or acquaintance who the owner was and if you further believe from the evidence that the friend in turn imparted the information received from the plaintiff to an intending pur- chaser, who thereupon went directly to the defendant and purchased the property without ever having seen or communicated with the plaintiff, then you are instructed that this alone is not sufficient to entitle the plaintiff to a commission). 30 The court instructs the jury that where a broker is employed to sell or exchange real estate and brings a buyer to the seller who is willing and ready to enter into an agreement with the seller for the purchase of his property, on the terms which the seller has fixed, and the seller is satisfied to accept the proposed buyer as a purchaser then the broker has earned his commission. 31 § 1232. — Washington. The court instructs the jury that in order for the plaintiff to recover in this case, he must prove to your satisfaction by a fair 29— Jacobs v. Kolff, 2 Hilt. (N. Y.) 31— Kalley v. Baker, 132 N. T. 1, 133. 28 Am. St. Rep. 542n, 42 N. Y. St. 30— Colwell v. Tompkins, 158 N. Y. 762. 690, 6 App. Div. (N. Y.) 93. § 1235] Beokebs. 1379 preponderance of the evidence that he was employed to procure a purchaser for the property in question, and that, pursuant thereto, he did find a purchaser ready, able, and willing to pur- chase, and brought such purchaser and defendants together. And in this connection you are instructed that, if you believe from the evidence that the plaintiff was employed to find a purchaser for the property of the defendants, and pursuant thereto, did find a purchaser who, through the efforts of the plaintiff, purchased defendants' property upon the terms specified in the listing contract, or as subsequently modified, or upon different terms agreed to between the defendants and such purchaser, and that the plaintiff was the procuring cause of the sale, then your verdict will be for the plaintiff. 32 § 1233. Dealings by principal through other agent — In general. §1234. —Illinois. The court instructs the jury that if they believe from the evidence that the defendant placed his property in the hands of the plaintiff for sale at a stipulated price, and the plaintiff intro- duced the defendant to A and that A made a proposition to exchange property in P for defendant's property, which was declined by the defendant, and that negotiations between A and defendant were then ended and definitely abandoned by the parties, and that the defendant, through the efforts of B, took in exchange for his land, land in T belonging to C, and that C took property in P belonging to A in exchange for the T land, the fact that the deed was made from the defendant to A would not entitle the plaintiff to recover and you should find for the defend- ant, unless you further believe the plaintiff was the efficient cause of the trade. 33 §1235. —Missouri. The court instructs the jury that if the jury find from the evidence that plaintiff's agency was the procuring cause of the negotiations between the defendant and A which finally resulted in the sale of defendant's property to A, then the plaintiff is 32— Bagley v. Foley, 82 Wash. 222, S3— Hinds v. Mclntire, 89 111. App. 144 Pac. 25. 611. 1380 Foems of Instructions. [§ 1235 entitled to recover, even though the jury may further find that the negotiations were consummated through another agent, and even though said other agent has been paid by defendant. 34 The court instructs the jury that if you believe that A went to B as C's representative, and concluded a sale at a lower price than C had offered through plaintiff; this fact would not of itself deprive plaintiff of his right to recover, if you believe from the evidence and instructions given you that plaintiff is entitled to recover 35 § 1236. — New York. The court instructs the jury that if they believe from the evidence that plaintiff was employed by the defendant to sell the land described in the declaration as alleged in -the declaration and that plaintiff's services resulted in a sale of the land to A, then you will find that plaintiff is entitled to commissions although you may further believe from the evidence that another broker on information derived from A, negotiated a contract of sale for the same land from the defendant to the representative of A, and that A acquired the land by an assignment of the contract from his representative,, and although you may further believe from the evidence that such other broker received his commissions upon the sale from the defendant, who paid him in ignorance of the facts, but without making any inquiry. 36 The court instructs the jury that if they believe from the evidence that the plaintiff was employed by the defendant to effect a sale of the property described in the declaration and that the plaintiff was allowed a reasonable time within which to pro- cure a buyer and that the plaintiff failed to effect the sale within the reasonable time allowed him and that the defendant in good faith terminated the agency and employed other agents by means of which the sale was consummated, then you are instructed that the plaintiff is not entitled to commissions, although you may further believe from the evidence that the sale was in some degree 34 — McCormack v. Henderson, 100 36 — Winans v. Jaques, 10 Daly (N. Mo. App. 647. Y.) 487. 35 — McCormack v. Henderson, 100 Mo. App. 647. § 1240] Bkokeks. 1381 aided by the previous unsuccessful efforts, of the plaintiff and that the purchaser was the one whom the plaintiff had intro- duced. 37 §1237. —Washington. The court instructs the jury that a seller is not obliged to pay two commissioners where two brokers are engaged in selling his property, unless, after one has procured a purchaser ready, able and willing to purchase upon terms acceptable to him, he deals through another, or in some way colludes with him to deprive the other broker of the fruits of his labor, and in this case, if you find that the plaintiff produced a purchaser ready, able and willing to purchase upon terms satisfactory to the defendants, and that a sale was made which you believe the plaintiff was the procuring cause thereof, the fact that the defendants may have dealt through another broker and paid him a commission does not take away the right of the plaintiff to recover in this case. 38 § 1238. Dealings by principal directly with third person — In general. §1239. —Kansas. , The court instructs the jury that one may become an agent of another by acting as such agent with the knowledge of the other, if such other person by his conduct and acts adopts or ratifies the agency. In this case the defendants had the right to disavow and repudiate plaintiff's authority to find them a customer for their land, but they could not knowingly adopt and approve his efforts to act for them and procure a purchaser, and, when he had done so, repudiate his authority and deal directly with the customer of plaintiff and deprive him of his commission. 39 §1240. —New York. The court instructs the jury that a bargain procured by the broker must be conformable to the terms of the employment, and that if the jury believe from the evidence that the plaintiff (was 37 — Sibbald v. Bethlehem Iron Co., 39 — Culbertson v. Sheridan, 93 Kan. 83 N. Y. 378, 38 Am. Eep. 441. 268, 144 Pae. 268. 38 — Bagley v. Foley, 82 Wash. 222, 144 Pae. 25. 1382 Foems of Instbuctions. [§ 1240 employed by the defendant as broker as alleged in the declaration to effect a lease, and that A with whom plaintiff negotiated for the lease of defendant's property failed to agree to the defend- ant's terms, but submitted a counter offer which the defendant rejected, and if the jury believe from the evidence that the defendant upon the rejection of the counter offer announced to plaintiff in good faith that the negotiation was closed and that afterward a lease was effected to A on different terms from those contained in the original agreement of the plaintiff, then the jury should find in favor of defendant). 40 The court instructs the jury that the fact that after the broker employed by the purchaser has presented a vendor, the purchaser takes charge of the negotiations and concludes them upon the terms proposed by the broker, does not defeat the broker's claim for compensation. 41 i The court instructs the jury that to entitle a real estate broker to commissions on the sale-of property, it is essential that he shall be the procuring cause of the identical contract of sale, for which commissions are claimed, and if you believe -from the evidence (that plaintiff was employed by the defendant to sell the property described in the declaration and that no power was given to the plaintiff to finally transfer the property and that an offer to purchase was procured by the plaintiff, and submitted to the defendant who rejected the offer, then you are instructed that plaintiff is not entitled to commissions though the sale was after- wards consummated between the defendant and the person who made the offer on different terms'). 42 The court instructs the jury that if you believe from the evi- dence that plaintiff was employed by the defendant to sell the lands described in the declaration, and that a purchaser was obtained through the plaintiff's services, then you may find a verdict for the plaintiff, though you may also believe from the evidence that the purchaser was unknown to the plaintiff and 40— Alden v. Earle, 121 N. Y. 688, 41— Baer v. Koch, 51 N. Y. St. 427, 31 N. Y. St. 375. See Sibbald v. 2 Misc. (N. Y.) 334. Bethlehem Iron Co., 83 N. Y. 378, 38 42— White v. Twitchings, 26 Hun Am. Rep. 441. (N. Y.) 503. § 1242] Brokers. 1383 that the transaction ,ofthe sale was completed directly between defendant and the purchaser. 43 The court instructs the jury that a broker need not negotiate or participate in negotiating a final transaction between the parties, and that if the jury believe from the evidence that (plain- tiff was employed as broker as alleged in the declaration for the sale of the real estate of the defendant as described in the declara- tion and that plaintiff first brought notice of the fact that defend- ant's property was for sale to A, and if the jury believe from the evidence that A after being informed of the terms of the sale, dealt with the defendant and purchased the property, then the fact that plaintiff was not present at the time the contract of sale was executed will not deprive plaintiff of his commissions). 44 The court instructs the jury that if a broker has made efforts to sell property of his principal in pursuance of his employment and his services have resulted in procuring a purchaser, he may be entitled to commissions, though the purchaser is unknown to the broker and dealt directly with the principal, and if the jury believe from the evidence (that the plaintiff was employed to make a sale of the real property described in the declaration as alleged therein and that the plaintiff advertised the property for sale, by which means a purchaser's attention was called to the land and that the purchaser submitted an offer to a subagent who communicated the offer to the defendant and thereafter negotia- tions were continued without interruption between the purchaser and the defendant personally until a sale was consummated, then you are instructed that the efforts of the plaintiff were the pro- curing cause of the sale and plaintiff is entitled to commissions . 45 § 1241. Same — Abandonment of negotiations by broker. §1242. — Massachusetts. The court instructs the jury that if the plaintiff said that he would have no more to do with A the defendant had a right to 43. — Sussdorf v. Schmidt, 55 N. Y. 45 — Doran v. Bussard, 18 App. Div. 319. (N. T.) 36. 44 — Lloyd v. Matthews, 51 N. Y. / 124; Bickart v. Hoffmann, 46 N. Y. St. 886. 1384 Forms of Instructions. [§ 1242 take him at his word and to employ another broker and to sell the property, if he could, to A, and that under such circumstances the plaintiff would not be entitled to a commission on the sale. 46 § 1243. — Mississippi. The court instructs the jury on behalf of the plaintiff, that if they believe from the evidence that the trade made to A by B resulted from the bringing together of these parties by the plaintiff, C, the plaintiff is entitled to recover from defendant the reasonable value of his services in connection with such sale, and they will find a verdict accordingly, awarding plaintiff such sum as they believe from the evidence that his said services were reasonably worth, unless they further believe from the evidence that prior to said sale plaintiff had abandoned his connection therewith, or had made statements which might reasonably lead defendant to believe he had so abandoned his connection there- with. 4 '? The court instructs the jury that if they believe from the evi- dence that the defendant put his property in the hands of the plaintiff for sale at $ net to the defendant, and that the plaintiff tried to sell it at that price and could not, and that he (plaintiff) told A to go in and trade with defendant, who, relying on this statement, then sold the lot to A, excluding feet off the side thereof, for $ , the jury will find for the defend- ant. 48 § 1244! — New York. The court instructs the. jury that one who has employed a broker to sell property, may himself sell it to a purchaser procured without aid from the broker and that t5 entitle the broker to commissions the sale must result from his efforts and if you believe from the evidence that the plaintiff (was employed by the defendant to sell the property described in the declaration and that the plaintiff opened negotiations with a customer, but failed to enter into an agreement with him and abandoned the negotia- 46— Woods v. Lowe, 207 Mass. 1. 48— Enochs v. Paxton, 87 Miss. 660. 47 — Enochs v. Paxton, 87 Miss. 660. § 1247] Beokees. 1385 tions and that the defendant subsequently sold to such customer, then you are instructed that plaintiff was not entitled to com- missions). 49 § 1245. Failure of principal to accept offer or perform contract — In general. -, * § 1246. — Colorado. The court instructs the jury that when an agent or broker in good faith has produced a purchaser who is acceptable to the owner, and able and willing to purchase on terms satisfactory to the owner, or as offered by the owner, he has performed his duty ; and if, from any failure of the owner to enter into a binding contract, the sale is not completed, the agent may recover his commission. 50 §1247. —Illinois. The court instructs the jury that where a principal contracts with an agent or broker to sell lands for or on behalf of the principal, and the broker performs his" part of the agreement by finding and introducing a purchaser therefor, which purchaser negotiates with the principal, and comes to an agreement with him respecting the price and terms of sale, and which purchaser is ready, able and willing to carry out such agreement with the principal, then in such case the principal cannot evade payment of commissions to the agent by refusing to make conveyance to such purchaser. And this would be true even though the prin- cipal's title were defective, and even though he had no title at all. It would also be true even though the agent had agreed to take his commissions out of the purchase money and even though he agreed to charge no commissions unless a sale were actually made, for it is the law that a principal in such a case has no right to, himself, arbitrarily or wrongfully refuse to consummate such sale, and then say for that reason he will not pay commissions to the agent. 51 49— Satterthwaite v. Vreeland, 3 51 — Swigart v. Hawley, 140 HI. Hun (N. Y.) 152, 5 Thomps. & C. 186. (N. Y.) 363. 50 — Buckingham v. Harris, 10 Colo. 455, 15 Pac. 817. 1386 Forms of Instructions. [§ 1248 §1248. —Kansas. The court instructs the jury that where an owner has listed and placed land in the hands of a real estate agent for sale, and in so doing has reserved the right to take the land off the market or to change the price without notice to the agent, such owner has the right to withdraw the land from the market or change the price thereof without notice to the agent, at any time before the agent has procured a purchaser who is willing and able to purchase the land at the price and upon the terms which the owner has authorized the agent to sell, or at a price and upon terms which the owner is willing to accept ; but you are further instructed that the owner in such a case does not have the right to withdraw the land from the market or to change the price for the purpose of avoiding liability for the commission of the agent after the agent has procured a purchaser with notice to, or the knowledge of, the owner who is willing and able to take and purchase the land at the price and upon the terms which the owner has authorized the agent to sell the same, or at a price and upon terms which the owner is willing to accept. 52 §1249. —Maryland. The court instructs the jury that if they find from the evidence that specific instructions were given by the defendant? to the plaintiff on the of , 19 — , that in the event of the purchase of the stock in the evidence mentioned, . the plaintiff should immediately communicate the fact of purchase to the defendant, and informed the plaintiff where to send the notice; and if they shall further find that the said stock was purchased on the said of by the plaintiff, and that the plaintiff did not communicate the fact of purchase immediately to the defendant, according to the order and instructions of the defendant, then the defendant was not required to take said stock. 53 The court instructs the jury that if the jury shall find that the defendant resided near R in county and the plaintiff" in 52 — Oulbertson v. Sheridan, 93 Kan. ' 53 — Worthington v. Tormey, 34 Md. 068, 144 Pac. 268. 182. § 1250] Bbokebs. 1387 B city, and that there was a daily mail from B to B., which was the proper postoffice of the defendant and that the plaintiff deposited in the postoffice in B on the of , a letter containing the notice mentioned in the instruction, then the said notice was sufficient notwithstanding the fact that it was not received by the defendant until the of , 19 — , and after the sale. 54 §1250. —Missouri. The court instructs the jury that if you find from the evidence in this cause that the defendant contracted and agreed with the plaintiff A that if he would sell his farm at $ an acre he would give him a commission of - — - per cent on the amount of the sale ; and if you believe that said A did so furnish a purchaser ready, able, and willing to take said land at said price then it was not necessary that said A should negotiate the terms of said sale; it was sufficient that he produce a man who was able and willing to comply with the terms that the defendant imposed; and if you find that he absolutely refused to make the sale, then said A was entitled to his commission and your findings should be for the plaintiffs, 55 The court instructs the jury that if the contract of agency was entered into, and the plaintiff found two purchasers who were ready, willing, and able to purchase the defendant's lands at the price authorized, and the defendant refused to accept the pur- chasers and execute a deed, the plaintiff was entitled to recover, unless the defendant had taken the sale of the lands out of the hands of the plaintiff before he had found a purchaser who was ready, willing, and able to purchase at the authorized price, in which case the plaintiff was not entitled to recover. 56 The court instructs the jury that if they believe from the evi- dence in this cause that the defendant, A, contracted and agreed with the plaintiff, B, that if he would sell his land for the price and sum of $ per acre he would pay to him the sum of 54 — Worthington v. Tormey, 34 Md. 56 — Kesterson v. Cheuvront (Mo. 182. App.), 70 S. W.1091. 55 — Sallee v. McMurry, 113 Mo. App. 253. 1388 Forms of Instructions. [§ 1250 per cent commission on the total amount of the sale, and if you further believe that the plaintiff, B, produced to him a purchaser or was the cause of one being produced who was ready, 1 able and willing to take the land at s'aid price, but the defendant, A, refused to perfect said sale, and if you further believe that this coplaintiff is the one-half owner of the said commission then you should find for the plaintiffs, as though said sale had been made the full amount of said per cent commission on said purchase price. 57 §1251. —New York. The court instructs the jury that in ordinary cases, the law is well settled where a broker is employed in reference to a sale of real estate, that when he brings a buyer to the seller who is willing and ready to enter into an agreement with the seller for the purchase of his property on the terms that the seller has fixed, and the seller is satisfied to accept him as a purchaser, then the broker has earned his commission. The earning of it is not dependent, in such cases, on the question as to whether the buyer carries out the contract, or as to whether the seller is able to com- plete his contract. Therefore, in the absence of any express agreement to the contrary, the law is that the broker is .entitled to his commissions when the vendor accepts, when he (the broker) brings to the vendor a party ready and willing to accept the terms fixed by the vendor, and the party is satisfactory to the vendor, and he enters into a contract with him. The contention is that there was a different agreement here. • That question is for you to determine. If you find that this was an ordinary contract, made without any conditions, the broker employed in the usual way, and that there was no bargain entered into between the plaintiff and the defendant, B, that he was only to be paid his commission in case this sale went through, then plaintiff is entitled to recover. If, however, the bargain agreed upon between plaintiff and defendant was that commission was only to be paid in case this whole transaction went through, as provided by the terms of the contract of sale, the plaintiff is not entitled to recover 57 — Sallee v. McMurry, 113 Mo. App. 253. § 1251] Beokees. 1389 unless you are satisfied from the evidence here that the defendant capriciously refused to carry out the contract. 58 The court instructs the jury that the principal cannot escape liability to a broker who has negotiated a sale by afterwards ' insisting upon a condition to which the purchaser refuses to accede and if you believe from the evidence (that plaintiff was employed by the defendant to sell the property described in the declara- tion and that plaintiff obtained a purchaser and that defendant and the proposed purchaser made an oral contract, the minds of the parties agreeing, then you are instructed that the plaintiff is entitled to commissions though you may further believe from the evidence that the defendant afterwards insisted on incorporating into the formal written contract a condition not in the oral agree- ment and that the transaction fell through because of this in- sistence). 59 The court instructs the jury that a broker who has found a party ready and willing to carry out an exchange of real property upon the terms fixed by his principal, cannot be defeated in his claim for commissions because his principal has been able to make a more advantageous bargain. 80 The court instructs the jury that the principal cannot escape liability by refusing to complete a transaction and if you believe from the evidence that plaintifE procured a purchaser in pursuance of his contract of employment by the defendant and that the defendant made an agreement with the purchaser for a sale, which was subsequently abandoned because defendant insisted upon the full cash payment instead of a mortgage for part as was agreed by the contract of sale, then you are instructed that plaintiff was entitled to commissions. 61 The court instructs the jury that if they believe from the evidence that (the plaintiff was employed by the defendant to sell the land described in the declaration, and that plaintiff brought the defendant and together, and that defendant 58 — Kalley v. Baker, 132 N. Y. 1, 60— Moses v. Helmke, 18 Misc. (N. 28 Am. St. Eep. 542n. Y.) 357. 59— Halprin v. Schachne, 27 Misc. 61— Levy v. Ruff, 53 N. Y. St. 174, (N. Y.) 195. 4 Misc. (N. Y.) 180. 1390 Forms of Instetjctions. [§ 1251 and £■ — came to an agreement as to the sale of the land, and that thereafter the oral agreement was reduced to writing with a clause that the agreement was to be subject to the approval of the defendant's attorneys, and that no mention of the approval of attorneys had been made prior to the execution of the written contract, and if the jury believe from the evidence that made a partial payment and stood ready to consummate the purchase and to execute any formal contract embodying the terms agreed on in the oral agreement, but that the defendant sought to impose new conditions and by his acts defeated the completion of the transaction, then the jury are instructed that the plaintiff is entitled to his commissions). 62 § 1252. Bad faith, fraud or misconduct of broker— In general. §1253. —New York. The court instructs the jury that an agent is held to the most perfect faith in the dealings with his principal, and if he acts adversely to his employer in any part of the transaction or omits to disclose any interest which would naturally influence his con- duct in dealing with the subject of the employment, it amounts to such a fraud upon the principal as to forfeit any right to compen- sation for services. 03 § 1254. — Oklahoma. The court instructs the jury that if you find from the evidence that the plaintiffs in any way were interested in the consideration of the transaction involved, to an extent that their interests came in conflict with the interests of the defendant in the transaction, then you should find for the defendant. 64 § 1255. Same— Acting for adverse party. §1256. — Massachusetts. The court instructs the jury that if the plaintiff acted as agent for A, without disclosing the fact that he was such agent to the defendant, he cannot recover a commission from the defendant. 65 62 — Halprin v. Schachne, 27 Misc. 64 — Heath v. Chowning, 43 Okla. (N. T.) 195. 274, 142 Pae. 1108. 63 — Murray v. Beard, 102 N. Y. 65 — Carpenter v. Fisher, 175 505. i Mass. 9. § 1261] Bbokebs. 1391 §1257. —New York. The court instructs the jury that a real estate broker who is merely employed to find a purchaser of property upon terms and conditions to be determined by the seller when he meets the purchaser, and who is a mere middleman not vested with dis- cretion respecting the price and terms of sale may accept a similar employment from a proposed purchaser and may be entitled to commissions from each party on the bargain being struck, although he has not informed either of his employment by the other. 66 § 1258. — Oklahoma,. The court instructs the jury that a real estate agent, acting for both parties, can recover compensation from neither. 67 § 1259. Same — Concealment of offer. The court instructs the jury that if there was a bona fide offer of $ made to the plaintiff by A which the plaintiff wrongfully failed to communicate to the defendant and- the defendant was thereby injured, then the plaintiff would have failed in the per- formance of his duty, and would not be entitled to recover. 68 § 1260. Same — Attempt to induce principal to accept amount less than that offered. The court instructs the jury that if you believe from the evi- dence that plaintiff was employed by the defendant to sell the property described in the declaration, and that the, plaintiff pro- cured a purchaser on the terms proposed by the defendant and that the plaintiff attempted to induce defendant to take less than the price which was offered by the prospective purchaser, then plaintiff is not entitled to compensation. 69 § 1261. Same — Alteration of contract. The court instructs the jury that, if the plaintiff caused the change to be made in the duplicate contract which was to be 66 — Knauss v. Gottfried Krueger 67 — Heath v. Chowning, 43 Okla. Brewing Co., 142 N. Y. 70, 58 N. Y. 274, 142 Pac. 1108. St. 316, 31 Abb. N. Cas. (N. Y.) 454; 68— Woods v. Lowe, 207 Mass. 1. Haviland v. Priee, 56 N. Y. St. 402, 69— Martin v. Bliss, 32 N. Y. St. 6 Misc. (N. Y) 372. 930, 57 Hun (N. Y.) 157. 1392 Foems of Lststbuctions. [§ 1261 given to the defendant, believing that he would, see the change when the contract was delivered to him, then the defense of fraud would not be sufficiently established to defeat the plaintiff's claim for commission. 70 The court instructs the jury that the contract for the sale of the land executed by the defendant and delivered to the plaintiff for the purchaser 's signature contained the terms of the sale and the authority of the plaintiff, and that he had no right to sell the land upon any other terms ; that, if he changed the contract left with A without the knowledge or consent of the defendant by striking out the rate of interest to be paid, it was a material alteration thereof, and that the sale was not made upon the terms authorized, and would not bind the defendant, or entitle the plaintiff to his commission, unless it was shown that the defendant consented to such change before the execution and delivery of a deed of the land. 71 § 1262. Ratification by principal — Departure from instructions. The court instructs the jury that it is not essential to entitle a broker to his commissions that he should have procured a pur- chaser upon the precise terms named by his principal at the time of employment. If he procures a purchaser and negotiations are continued without a withdrawal of either party and culminate in a sale though for a sum less than that originally demanded and upon different terms, the principal thereby ratines the departure from his instructions and is liable for the commissions. 72 § 1263. Estoppel of broker — To allege agency of third person. , The court instructs the jury that if you find from the evidence given to you in this cause that the defendant employed plaintiff as a real estate broker to sell his farm, and that the plaintiff, for the purpose of aiding and assisting him in selling said farm, and for the purpose of procuring a purchaser therefor, took into 70 — Robertson v. Vasey, 125 Iowa 72 — Levy v. Coogan, 30 N. Y. St. 526. 553, 16 Daly (N. Y.) 137. 71 — Bofoertson v. Vasey, 125 Iowa 526. § 1265] Brokers. 1393 his employ and service one W and if you further find that said W, aiding and assisting said plaintiff in the sale of said farm, took to this defendant one L as a probable purchaser for said farm, and if you further find that in the presence of said W the said L . inquired of this defendant the selling price of said farm and then and there informed the defendant that he desired to purchase direct from the owner, and that he had never seen or been intro- duced to the plaintiff, and that he would not purchase of com- mission men, and you further find that the defendant did not know that the sale was being made by the plaintiff, and if said W stood by and did not inform this defendant that the sale was being made by the plaintiff, the plaintiff would now be estopped from claiming that the said W was acting for and on his behalf in the sale of said farm, and you should find for the defendant. 73 § 1264. Reimbursement for advances and losses. §1265. —Maryland. The court instructs the jury that if they shall find from the evidence that the plaintiff was a stock broker ia B and that the defendant, on , 19 — , authorized him to purchase on his account shares of the stock and shall find that the place where said stock was ordinarily bought and sold was at the in and shall further find that the plaintiff therefore actually purchased shares of said stock through his subagents , stock brokers in , and at a price not exceeding the price limited by the defendant and that the defendant did not supply the plaintiff with funds to make said purchase and that the plaintiff had funds and credit with his sub- agents, which were applied by them in making said purchase ; and if they shall further find that the defendant on the next day after the purchase was informed of said purchase and that the plaintiff notified the defendant on , 19—, by letter addressed to him at his proper postoffiee, that he was ready to deliver to him shares of stock so purchased on his account, and 73 — Mullen v. Bower, 22 Ind. App. 294. . „ y j Blashfield Vol. 1—88 / 1394 Foems of Instructions. [§ 1265 that unless he came forward and paid for it, he, the plaintiff on or after , 19 — , would sell said stock at the risk and cost of the defendant; and they shall further find, that the plaintiff had ready for delivery to the defendant such stock and that he did sell on , 19 — , at the in shares of said stock for and at the risk of said defendant and that after applying the whole proceeds of said sale, there was a loss upon the said original purchase, which said loss the plaintiff did pay to his subagents, then the plaintiff is entitled to recover the amount of said loss or the difference in price, together with his reasonable commission for the purchase and the expense of said resale. 74 §1266. —New York. The court instructs the jury that if they believe from the evidence, that the plaintiff purchased the property described in the declaration, without disclosing to the vendor of the property the' name of defendant for whom it is alleged he acted as broker, ■ and that plaintiff was obliged to pay the amount of the purchase price to the vendor, and if the jury believe from the evidence that defendant had authorized the plaintiff to purchase the prop- erty and that plaintiff acted as broker for defendant in making the purchase, then plaintiff may recover the purchase price so paid from the defendant. 75 § 1267. Actions — Parties — Plaintiff. The court instructs the jury that if, in making the agreement for a commission, the plaintiff was acting for or representing his father, then plaintiff can not recover, and in such, case the verdict should be for the defendant. 76 §1268. Same — Issues and proof . § 1269. — Colorado. The court instructs the jury that if the principal rejects a pur- chaser and the broker claims his commission, he (the broker) 74— Worthington v. Tormey, 34 76— Snyder v. Fidler, 125 Iowa Md. 182. 378. 75— Knapp v. Simon, 96 N. Y. 284, 6N. Y. Civ. Proc. (Browne) 1. § 1271] Beokers. 1395 must show that the person furnished by him (the broker) to make the purchase was willing to accept the offer precisely as made by the principal, that he was an eligible purchaser and such a one as the principal was bound in good faith, as between himself and the broker, to accept. 77 The court instructs the jury that to entitle the broker to com- missions for his services, he must make it appear, by a fair pre- ponderance of evidence, that the services were rendered under an employment and retainer by the principal, or that the latter accepted his agency and ratified or adopted his acts. If he ren- dered the service as a mere volunteer, without any employment, express or implied, he cannot recover commissions. 78 § 1270. — Kansas. The court instructs the jury that, if the plaintiffs agreed and undertook to sell the defendant's farm for a commission upon the price realized, then in order to earn their said commission, it must appear by a preponderance of the evidence that they effected a sale of the farm to a party ready, willing and able to perform the conditions of the sale. The mere procuring of a person to enter into a contract to purchase the land, unless such purchaser was ready, willing and able to make the cash payments named in the contract, and to make the mortgage therein named for the deferred payments, would not be sufficient to entitle the plaintiffs to their commission. 79 § 1271. — Maryland. The court instructs the jury that the plaintiffs cannot recover in this case upon the dealings in grain between them and the defendant unless the jury shall find from the evidence all the following facts: 1st. That the defendant authorized said deal- ings. 2nd. That the purchase and sales authorized by him were actually and bona fide made. 3rd. That the grain directed by 77 — Buckingham v. Harris, 10 Colo. 79 — Stewart v. Fowler, 37 Kan. 677, 455, 15 Pac. 817. 15 Pac. 918. 78 — Duncan v. Borden, 13 Colo. App. 481, 59 Pac. 60. 1396 Fokms op Instructions. {§ 1271 him to be bought was in fact bought by the authorized agent or agents of the plaintiffs in and was in fact delivered by the seller or sellers to and accepted by said authorized agent or agents. 4th. That the grain directed by the defendant to be sold was in fact sold by the authorized agent or agents of the plaintiff in and was in fact delivered by such au- thorized agent or agents to the purchasers thereof. 80 § 1272. — Nebraska. The court instructs the jury that where the owner of personal property authorizes or employs several agents to sell the same, but gives neither an exclusive agency, the agent or broker who actually effects the sale is entitled to a commission. The agent under such contract who negotiates with the purchaser, but does not effect the sale, cannot recover a commission; and, before the plaintiff in this cause can recover, he must show you by a pre- ponderance of the testimony that he actually effected the sale of the automobile, and if he has failed to do so, he cannot recover. 81 §1273. —New York. The court instructs the jury that the person procured as a purchaser must be able to complete the transaction, and that to entitle a broker to commissions for effecting an exchange of property, he must show through his efforts not only a valid contract was entered into by persons competent to make the same, upon terms and conditions agreeable to the principals, but also that the proposed purchaser was able as well as willing to carry out the contract made, and that the trade fell through by reason of the inability or capriciousness of his employer to con- summate it. 82 § 1274. — United States. The court instructs the jury that it is not necessary, however, for the plaintiff to prove that the influence exerted by him was the sole influence, but it is necessary for him to show that by 80— Stewart v. Schall, 65 Md. 289, 82— Moskowitz v. Hornberger, 20 57 Am. Rep. 327. Misc. (N. Y.) 558. 81— Goodwin v. Haller, 97 Neb. 209, § 1276.] Bbokeks. 1397 reason of something that he did an influence was brought to bear upon the syndicate, or upon their representa- tive, which in whole or in part induced the making of the contract which was entered into between the Com- pany and A and his associates. 83 § 1275. Same — Presumptions and burden of proof — In general. The . court instructs the jury that they must find what the plaintiff did, if anything, under this contract, which induced the making of this contract. The burden of proof is upon the plain- tiff to show that by his conduct subsequent to the — of , or subsequent to his letter of the — of , which made the contract, he did something that influenced the syndi- cate to enter into the contract that was subsequently made. 84 The court instructs the jury that the burden of proof is upon the plaintiff to prove and show to the satisfaction of the jury by a preponderance of all the evidence that the defendant agreed to give him $ to sell his residence for him, and that he did sell it, or render services which enabled defendant himself to sell it; and unless he has' proven these facts to the satisfaction of the jury by a preponderance of all the evidence the jury must find for the defendant. 85 §1276. Same— Same— Fraud. The court instructs the jury that a broker may recover com- missions where title is taken by a stranger to the negotiations for the purpose of defeating his commissions, but that while this is so, bad faith must be shown and if you find from the evidence that (the plaintiff was approached by A, who wished to buy a house and requested him to make exertions in that direction and that the plaintiff introduced A to the defendant and informed the defendant that if A purchased, the defendant must pay com- missions, and if you find from the evidence that the negotiations failed to result in an agreement and that afterwards defendant 83— Walker Mfg. Co. v. Knox, 69 85— Enochs v. Paxton, 87 Miss. 660. C. C. A. 160, 136 Fed. 334. 84— Walker Mfg. Co. v. Knox, 69 C. C. A. 160, 136 Fed. 334. 1398 Fobms of Instructions. I§ 1276 conveyed his house to his brother and that subsequently A bought of the brother, then you are instructed that plaintiff was not entitled to commissions, unless you further find that the transfer to the brother was in bad faith). 86 § 1277. Same — Measure of recovery. §1278. —Iowa. The court instructs the jury that if they find for plaintiff they should al,low him the customary charges for such services, to wit, — per cent, on the first thousand, and — per cent, on the bal- ance of the purchase price. 87 § 1279. — Maryland. The court instructs the jury that if they find from the evi- dence that plaintiff was engaged in the business of a property broker in the city of B and that the defendant offered certain property for sale to the park commissioners of said city and that he employed the plaintiff to aid and assist him in effecting said sale, either by previous authority or the acceptance of the plain- tiff's agency and the adoption of his acts, and that the plaintiff did diligently and faithfully occupy his time and render services in so aiding him to effect said sale and a sale of said property to said commissioners was in a short time made and effected and that said services were of advantage and value to the defendant in effecting the said sale, then the plaintiff is entitled to recover such sum as the jury may find from the evidence, to be a reason- able remuneration to the plaintiff for said services, and in ascer- taining what is a reasonable remuneration, the jury may consider the rate of compensation, which they may find from the evidence was usual and customary in the said city for 'services of a like kind. 88 The court instructs the jury that if they find from the evi- dence that the defendant employed the plaintiff to procure a purchaser for the property spoken of by the witnesses and the plaintiff did procure a purchaser for said property and the said 86— Bennett v. Kidder, 5 Daly (N. 87— Sample v. Rand, 112 Iowa 616. Y.) 512. 88— Walker v. Eogers, 24 Md. 237. § 1281] Brokees. 1399 property was sold by the defendant to the purchaser procured by the plaintiff, then the plaintiff is entitled to recover such compensation as they may find usual and customary. 89 IV. Bights and Liabilities of Third Persons. § 1280. Notice of broker's agency. The court instructs the jury that if you find that plaintiff at the time he bought the goods of defendant had no other reason to suppose that defendant was acting for another than the mere knowledge that defendant's business was that of a commission merchant then you will find for the plaintiff. 60 § 1281. Payment to broker. • The court instructs the jury that if they believe from the evidence that A was a broker, and apparently had the general charge* of plaintiff's office, and that A negotiated a sale of the plaintiff's goods as alleged in the declaration to the defendant without disclosing that he acted as broker only, and the sale was made openly and in the presence of other parties in plaintiff's office, and if the jury believe from the evidence that A subse- quently had the possession of the evidences of the title to the property so sold, and that A's acts up to the- time for payment of the price had been apparently ratified by the plaintiff, then the jury may find that defendant was justified in giving to A a check drawn to plaintiff's order for the goods so purchased. 91 89— Jones v. Adler, 34 Md. 440. 91 — Talmage v. Nevius, 32 N. Y. 90— Bliss v. Bliss, 7 Bosw. (N. Y.) Super. Ct. (2 Sweeny) 38. 339; Hogan v. Short), 24 Wend. (N. Y.) 458. CHAPTER LXXVI. BUILDING AND CONSTRUCTION CONTRACTS. I. Existence. 1282. Qualified acceptance of offer. • 1283. Implied contract. II. Construction and Operation. i 1284. Ready for occupancy. i 1285. Price to be paid for excavation work. • 1286. Acquiescence in construction placed upon contract by other party. III. Performance or Breach. i 1287. Sufficiency of performance in general. i 1288. Part performance. i 1289. Substantial performance — In general. i 1290. — Illinois. i 1291. — Iowa. • 1292. — Texas. i 1293. Same — Deviations from contract. ■ 1294. — Maryland. i 1295. — New York. i 1296. Time for performance. i 1297. Exercise of reasonable economy. i 1298. Satisfaction of engineer. i 1299. Prevention of performance by other party to contract. i 1300. Refusal to make payment due. i 1301. Subletting portion of work. i 1302. Waiver — In general. i 1303. Same — Time provision. IV. Estimate or Certificate of Architect or Engineer. i 1304. Necessity. : 1305. — Missouri. i 1306. — New York. L1307. Conclusiveness — In general. (1400) 1282] Building and Construction Contracts. 1401 i 1308. Same— Fraud, i 1309. Refusal. § 1310. In general. V. Abandonment op Work. VI. Actions by Contractor. § 1311. Right of action — Effect of parol guaranty. § 1312. Conditions precedent — Tender of release. § 1313. Reconvention. § 1314. Evidence — Burden of proof — Misrepresentations. § 1315. Same — Same — Performance. § 1316. Damages — In general. §1317. —Maryland. §1318. —Texas. § 1319. Same — Deduction for damage to wall of building. § 1320. Same— Extras. § 1321. — Connecticut. § 1322. — Indiana. § 1323. — Maryland. § 1324. — Texas. § 1325. — Virginia. §1326. Same— Overpayment. VII. Actions by Owner. § 1327. Damages — In general. §1328. —Illinois. § 1329. — New York. Cross-Beference. Matters pertaining to law of contracts in general, see Contracts. I. Existence. § 1282. Qualified acceptance of offer. The court instructs the jury that if you believe from the evi- dence that after the Iron Works made its bid to the defendant, A, to do certain work in connection with the improvements at the Building for a certain speci- fied price, there was an acceptance of that offer by the defendant A, then the law of this case is for the plaintiff, and you should so find, unless the acceptance was made with the understanding between the parties that the work was to be done in a certain 1402 FOBMS OF InSTETJCTIONS. [§ 1282 stipulated time, or that after the acceptance a contract between them should be put in writing and signed by the parties, or a bond should be executed by the Iron Works to A. Now, if you believe any of' those stipulations or terms were understood and agreed to between the parties, and the plaintiff, the Iron Works failed to do those things or any one of them if it had agreed to it, then the law of this case is for the defendant, and you should so find. 1 § 1283. Implied contract. The court instructs the jury that if they shall believe from the evidence that the defendant, A, after being advised by the plain- tiff B, that it would be best to begin boring in a new place, sent for a man to locate said new place, that the man sent for did locate said new place, at the defendant's instance and request, and that the plaintiff, acting upon defendant's conduct, bored or drilled a second well at said new place, with defendant's knowledge and consent, even though said consent be implied from the defendant's conduct, you will find for the plaintiff. 2 II. Construction and Operation. § 1284. Ready for occupancy. The court instructs the jury that the question of the proper construction and interpretation of a contract is one of law for the court to decide. The alleged contract here sued on provides that, the plaintiff shall finish a house for defendant "ready for occupancy" and then proceeds to state the details as to a por- tion of the Work. As far as the manner of doing the work and kind of work is specified, the work must be done as thus speci- fied, and the only difficulty arises as to the work not specified, but which is required to, be done by that provision of the con- tract which says that the house must be finished "ready for occupancy." The court cannot as a matter of law give you the details which the parties have omitted but instructs you that 1— Lynch v. Snead Architectural 2— Mansfield v. Morgan, 140 Ala. Iron Works, 132 Kj. 241, 21 L. K. A. 567. (N. 8.) 852n. § 1285] Building and Construction Contracts. 1403 plaintiff would under this provision of the contract be bound to do all things that would be reasonably necessary and proper to make a house ready for occupancy, taking into consideration, in determining what should be done, the character of the house he was to finish; and if the jury'find that he omitted anything specified in the contract or omitted any other thing that was reasonably required to have such house as is referred to and described in the contract, ready for occupancy, then. he has not performed his contract and cannot recover upon it. 3 § 1285. Price to be paid for excavation work. The court instructs the jury that by the terms of the written contract sued upon, which are as follows: "If the coal vein should become of a less thickness than four feet, exclusive of slates and coal not usually mined in run of mine coal in adjoin- ing collieries, this will entitle the contractor to the price of $3.50 per cubic yard for the entire section of the tunnel instead of the price of $1.75 per cubic yard," — the parties had reference to the rectangle, as shown on the blue print, nineteen feet high, above subgrade, which may have been fixed at a point not ex- ceeding two feet below the bottom of the No. 3 coal bed, as opened at each portal ; and if the jury believe from the evidence that the said coal vein became of less thickness than four feet in said rectangle, then the plaintiff is entitled to the price of $3.50 per cubic yard for the space in which it was less than four feet thick, unless the jury believe that the parties placed a dif- ferent construction upon said contract, or changed said contract by agreement. And the court further instructs the jury that, though they may believe from the evidence that, when it became apparent that the coal vein disappeared from said rectangle by a dip or deflection in the vein, that the plaintiff assented to a change in the mode of doing the work contemplated, by agreeing to excavate the coal bed in its entire length, to the Western portal, before taking down the top of the tunnel, and that, when said agreement was made for the change in the mode of the work, 3 — Cunningham v. Washburn, 119 Mass. 224. 1404 Foems of Insteucttons. [§ 1285 if nothing was said in reference to the price of the work to be done (provided they believe such change in the mode of doing the work did not necessarily contemplate a change in the price also), then the terms mentioned in the written contract, as to the price, would prevail, and the plaintiff would be entitled to the price of $3.50 per' cubic yard for the part of the work in dispute, unless the jury believe from the evidence that the defendant so construed the contract at the time the change in the mode of the work was agreed upon, and while the work was being performed, as to entitle -the plaintiff to demand and re- ceive only the sum of $1.75 per cubic yard for said work, and that the plaintiff, with full knowledge of the defendant's con- struction of the said contract, acquiesced in the said construc- tion. 4 § 1286. Acquiescence in construction placed upon contract by other party. The court instructs the jury to disregard all evidence of. the construction put upon this contract by A at the time this con- tract was entered into, unless the jury believe that the said con- struction was communicated by said A to B & C, and was acquiesced in by them, or unless the said B & C put the same construction on said contract at said time ; and though they may believe from the evidence that, immediately prior to and about the time the contract was written and signed by the plaintiffs, the probability was discussed between A, and the plaintiffs as to the "petering out" of the coal vein in the mountain, yet such discussion cannot be considered by the jury as sufficient to change, modify; or add to the provisions and terms of said writ- ten contract, but only for the purpose of ascertaining the cir- cumstance, connected with the subject-matter of the contract at the time it was made, and the object and purpose of the parties as avowed at the time they entered into the contract; but the terms of said contract are to be construed as directed by the court in instruction No. — . 5 4— Norfolk & W. R. Co. v. Mills, 5— Norfolk & W. E. Co. v. Mills, 91 Va. 613. 91 Va. 613. § 1288] Building and Construction Contracts. 1405 The court instructs the jury that the plaintiff entered into a contract with the defendant for the construction of and plaintiff contends in this suit that he is entitled to more than , the amount of money which defendant paid plaintiff for the work done and which defendant claims is all the plaintiff is entitled to and the court instructs the jury that in determining the question whether or not plaintiff acquiesced in the construction of the contract on the part of the defendant by which the defendant paid and plaintiff received dollars per for the material m the in dispute, they are to look to all the circumstances of the case and plaintiff will not be considered as acquiescing in defendant's construction of the contract, unless the plaintiff neglected to assert his own construction thereof, to the defendant or its agents for such length of time as to warrant the defendant in believing that he had waived or abandoned his right to demand more than dollars per . 6 III. PERFOBMANCE OR BREACH. I § 1287. Sufficiency of performance in general. The court instructs the jury that you must consider the condi- tion of the parties and the circumstances surrounding the matter ; the size of the farm ; the probable needs of such a farm ; the ordi- nary uses that a farm requires a well for in this neighborhood, — to determine what was in the minds of the parties, what they contemplated when this well should be put there. 7 The court instructs the jury that the defendant was entitled to a well that would supply a reasonable and sufficient quantity of water for the wants and needs of himself and of a farm of that character in that neighborhood. 8 § 1288. Part performance. The court instructs the jury that if they believe from the evi- dence that plaintiff entered into a contract with the defendant to (dig a well number of feet deep unless the 6— Norfolk & W. E. Co. v. Mills, 7— Eichison v. Mead, 11 S. D. 639. 91 Va. 613. 8— Eichison v. Mead, 11 S. D. 639. 1406 Foems of Instructions. [§ 1288 plaintiff should strike water at a less depth, and that the plain- tiff made efforts to find water and failed, and that plaintiff did not.- dig the well to the depth designated by the contract), then the jury are instructed that plaintiff cannot recover for his services. 9 § 1289. Substantial performance— In general. §1290. —Illinois. The court instructs the jury that under the written contract in evidence, the defendant was entitled to have erected such a building as was called for by the terms of the contract, and, though the jury may believe that there has been a substantial performance of the terms of the contract by the plaintiffs, yet nevertheless if the jury believe that the terms have not been fully complied with, the jury should allow to the defendant such sum or sums as from the evidence they may believe are reason- able and proper to enable the defendant to complete the build- ing in the manner stipulated for in the contract. 10 §1291. —Iowa. The court instructs the jury that if they find that the plaintiff has constructed the ditch in a reasonably workmanlike manner and substantially in accordance with his contract and profiles furnished by the engineer in charge, then he will be entitled to recover whatever balance appears from the evidence to be due upon the contract price. 11 The court instructs the jury that plaintiff in this case sues to recover under a contract by which, he was to furnish to defend- ant a monument, the cap of which monument should be the same as that upon a monument erected upon the grave of one T. It appears from the evidence that the monument erected by plain- tiff for defendant in this case was a smaller monument than the one erected on the grave of T. The court instructs the jury that to entitle plaintiff to recover, it is not necessary that the cap on 9 — Lawrence v. Van Deventer, 51 11 — Gorton v. Moeller Bros., 151 N. Y. 676. Iowa 729. 10— Keeler v. Herr, 157 111. 57, aff'g 54 111. App. 468. § 1292] Building and Oonstbuction Contracts. 1407 the monument in question should be of the exact proportion and size as that upon the T monument. It is sufficient if it be shown to be substantially the same in style and finish and of such pro- portions as to present the same general appearance as that upon the monument of T, and so to be of such proportions as to prop- erly correspond with the monument on which it is placed, and if from the evidence, the jury shall find that plaintiff has thus substantially complied with his contract, you will find for plain- tiff. If you do not so find, you will find for defendant. 12 §1292. —Texas. The court instructs the jury that in deciding whether or not plaintiff was proceeding with said building in compliance with the contract, you are instructed that there must have been a substantial compliance in every material particular in each item as called for by a fair, reasonable and practical construction of the contract, and plans and specifications, taken together and where there is a conflict, if any, in these, this should be recon- ciled in a practical, workmanlike manner, so as to arrive at the fair and reasonable intention of the same. 13 The court instructs the jury that the contract sued on pro- vides that the electric light plant in question should be sub- jected to an examination by, and that the same should be sub- ject to the approval of, the electrician of the Survey and Rating Bureau. If the plaintiff made an effort in good faith to get the electrician of said Survey and Rating Bureau to examine said plant, then this clause of the contract would be substantially complied with; but if you find, from the evidence, that the plaintiff did not in good faith make an effort to secure said examination of said electric plant by said electrician afore- said, and if you find that same was not examined by said elec- trician of the Survey and Rating Bureau, then you are instructed that this would constitute a complete defense to the action of the plaintiff on the contract,- and if you so find you 12 — Prior v. Schraeiser, 100 Iowa 13 — Linch v. Paris Lumber & Grain 299. Elevator Co., 80 Tex. 23. 1408 Forms or Instbuctions. ['§ 1292 will return a verdict as against plaintiff, as to any recovery on the contract sued on. 14 § 1293. Same— Deviations from contract. §1294. —Maryland. The court instructs the jury that, if they find for the plaintiffs, there should be no deduction made from the balance, if any, due under the contract price for deviations, if any, from the pro- visions of the contract, which were made by the plaintiffs in consequence of directions from the defendants or their duly authorized agents. 15 §1295. —New York. The court instructs the jury that substantial performance, as applied to a building contract, permits only such omissions or deviations from the contract as are iriadvertent or unintentional, are not due to bad faith, do not impair the structure as a whole, are remediable without doing material damages to other parts of the building in reconstructing and may without injustice be compensated for by deductions from the contract price. 16 The court instructs the jury that there may be a recovery with- out a literal or exact performance, as where a builder has in good faith intended to comply with the contract and has substantially done so, although there may be slight defects caused by inadver- tence or unintentional omissions and (if the jury believe from the evidence that the plaintiff entered into a contract with the defend- ant to construct for defendant the building described in the declaration, and that there was a deviation from the plans con- stituting a part of the contract, by which the attic was made five inches lower than that called for by the plans and if the jury believe from the evidence that this error was caused by a mistake in measurement not detected by either party or by the architect until the building was completed, and that the deviation did not 14 — A. J. Anderson Elec. Co. v. 16— Glacins v. Black, 50 N. Y. 145, Cleburne Water, lee & Lighting Co. 10 Am. Sep. 449; Spence v. Ham, 27 (Tex. Civ. App.), 44 S. W. 929. App. Div. (N. Y.) 379. 15— Iron Clad Mfg. Co. v. Thomas B. Stanfield & Son, 112 Md. 360. § 1296] Building and Construction Contracts. 1409 affect the exterior appearance of the building or its usefulness or value in any respect, then the jury may find that there has been a substantial performance and in such case they will render a verdict for the plaintiff for the contract price less the damages, if any, which they may find to have resulted from the, defect. 17 , § 1296. Time for performance. The court instructs the jury that if they find that the plaintiffs completed the building by , 19—, except as to the loading platform, and that the construction of said platform was post- poned by request of the defendants, and was afterwards erected promptly upon request, and in the manner directed by the witness A, acting under instructions from the defendants, then the jury may find that the building was completed , 19 — , within the meaning of the contract. 18 The court instructs the jury that the plaintiff in this case sues on a contract by which plaintiff undertook to construct water- wheels for defendant, which with their appurtenances and fixtures should be able, when employed by defendants in running their mill to work up to horse power ; that they should be capable of effecting a saving of per cent, of water over the wheel previously in use, and that the wheel should be completed by : , unless the plaintiffs were prevented from complet- ing the same on or before said by circumstances over which plaintiff had no control, and the court instructs the jury that even if they shall find from the evidence that the wheels as constructed by plaintiff with their appurtenances and fixtures were able to work up to horse power and were capable of effecting a saving of per cent, of water, but shall also find that said work was not completed on or before the day of and that the plaintiffs were not prevented from com- pleting said wheels on or before said day by circumstances over which they had no control, then the defendant is entitled to a credit of dollars for each and every day during which 17— Oberlies v. Bullinger, 132 N. 18— Iron Clad Mfg. Co. v. Thomas Y. 598. B. Stanfield & Son, 112 Md. 360. Blashfield Vol. 1—89 1410 Forms op Instructions. [§ 1296 said work remained uncompleted after said • day of 19 § 1297. Exercise of reasonable economy. The court instructs the jury that it was the duty of the plain- tiff, in the completion of the construction of the substructure of the bridge described in the plaintiff's petition, to use ordinary care to the end that said work should be prosecuted and con- ducted with reasonable skill and dispatch, and that reasonable economy should be exercised as to the employment of labor, the purchase of material, and the incurring of other expenses reason- ably and properly incident thereto. 20 § 1298. Satisfaction of engineer. The court instructs the jury that if they believe from the evidence that the plaintiff in this case entered into a contract with defendant for the construction of and that the plaintiff completed the in a workmanlike and substantial manner and to the satisfaction of the engineer of the company and that the was accepted by the defendant company, then the plaintiff is entitled to recover any sum that may be due him for said work under the contract here sued on, although the jury may believe from the evidence that the defend- ant company directed a change in the method of doing the work. 21 § 1299. Prevention of performance by other party to contract. Under the contract it was not the duty of the plaintiffs to procure the right of way ; and if you find from the evidence that the plaintiffs entered upon the performance of their part of the contract by grubbing, clearing, grading, etc., as therein stipulated, and that they were prevented from completing their part of the contract because the right of way had not been obtained from the owners of the land through which the road ran, and where the work was to be done, who forbade and refused to permit the 19— Conner v. Mount Vernon Co., 21 — Norfolk & W. H. Co. v. Mills, 25 Md. 55. 91 Va. 613. 20— El Paso Bridge & Iron Co. v. Dunham, — Tex. Civ. App. — , 152 S. W. 1131. § 1301] Building and Construction Conteacts. 1411 plaintiffs to enter and do the work, this would be a sufficient excuse for the failure of the plaintiffs to perform.the work, where such right of way had not been obtained. 22 § 1300. Refusal to make payment due. If you believe from the evidence that the plaintiffs entered upon the performance of their part of the said contract and per- formed work under it, according to its terms, and if you further find that the made out monthly proximate estimates of the work done by plaintiff at the end of each month which were returned and brought to the notice of the defendant, and that the defendant, upon the request of the plaintiffs, after the expiration of days from the return of any such estimate refused and neglected to pay plaintiffs the amount due according to the amount in such estimate, such failure or refusal of the defend- ant to pay was a breach of his part of the contract, and the plaintiffs were not bound to go on and complete all the work, but might suspend or quit the work until payment was made, and if you find that payment has not been made and the work has been suspended, the plaintiffs will be entitled to recover in this suit for all work done under said contract at the rates therein stipu- lated. 23 § 1301. Subletting portion of work. Although you may believe from the evidence that plaintiffs did sublet a portion of the work and that a part of the work sued for was done by subcontractors under such subletting, yet, if such subletting was done with the knowledge and consent of the defendant by his express promise to hasten the work, the plain- tiffs are entitled to recover for all work done under said contract, so far as any defense is concerned, based upon the fact of such subletting, and especially if the plaintiffs were to and did give the work their personal attention and oversight ; and whether the defendant assented to such subletting or not, should be determined from all the evidence, facts and circumstances in the case, and you 22— Bean v. Miller, 69 Mo. 384. 23— Bean v. Miller, 69 Mol 384. 1412 Foems of Instbuctions. [§ 1301 are the sole judges of the evidence and credibility of the witness, and may give to each such credit as you may deem proper. 24 § 1302. Waiver — In general. The court instructs the jury that plaintiff entered into a con- • tract with defendant for the construction of — and that the plaintiff claims that he has not received all the money to which he is entitled under the contract for work done by him, and the court instructs the jury that if they believe from the evidence, that plaintiff received from the defendant company compensation for at the rate of $ ; and that at the time of receiving such payments from the defendant, he was told by defendant's agent that the defendant would adjust everything to the plaintiff's satisfaction, if anything more was due to plaintiff for the work done by him, and that plaintiff relied upon his ability to adjust the matter satisfactorily with the defendant and that plaintiff had the right reasonably to so rely, then the accept- ance of such payment is not to be taken as a waiver of plaintiff 's rights under the contract or as acquiescing in the construction placed upon the contract by the defendant, and the jury must determine from all the facts and circumstances of the case whether plaintiff has by his conduct waived any of the rights under said contract or has acquiesced in the construction placed upon the contract by the defendant. 25 §1303. Same — Time provision. The court instructs the jury that the parties to an agreement for the construction of a building may by their conduct waive the provisions contained in it and may extend the time of its performance and (if they believe from the evidence-that plaintiff entered into a contract for the construction of the building described in the declaration, the building to be constructed in a certain time and that extra work was done by the plaintiff not called for by the contract, at the request of the defendant, and if the jury believe from the evidence that the work called for 24— Bean v. Miller, 69 Mo. 384. 25— Norfolk & W. E. Co. v. MillB, 91 Va. 613. § 1306] Building and Construction Contracts. 1413 by the contract would have been done in time if it had not been for the extra work, then the jury are instructed that the defendant cannot insist on the performance of the contract in the time . specified in the contract as being absolutely essential). 26 The court instructs the jury that although where by the terms of a contract time is made of the essence, the failure of the con- tractor to complete the work within the time limited will defeat his right to recover anything under the agreement, yet if the jury believe from the evidence (that plaintiff entered into a contract with defendant to excavate on the property described in the declaration, time to be of the essence, and that the plaintiff did not finish the excavation within the time specified, but defendant permitted plaintiff to continue and finish the work after the time stipulated, then defendant cannot insist upon the delay as a defense to this suit to recover the price of the work). 27 IV. Estimate ok Certificate of Architect or Engineer. §1304. Necessity. §1305. — Missouri The court instructs the jury that if you find from the evidence that the defendant's engineer or his assistant only made approxi- mate estimates of the work as stated in the petition, such estimates would not limit the recovery of the plaintiffs to the amount of the work so approximately estimated. But, if you find the plaintiffs, not being in fault themselves, were prevented from performing the work by the default of the defendant in paying for the work which was in consequence suspended or abandoned, and that no final estimate was made of all the work done, then, and in that case, the plaintiffs can recover for the whole amount of work done by them, whether estimated or not. 28 §1306. —New York. The court instructs the jury that if they believe from the evidence that the plaintiff made a contract with the defendant 26— Van Buskirk v. Stow, 42 Barb. 28— Bean v. Miller, 69 Mo. 384. (N. Y.) 9. 27— Dunn v. Steubing, 120 N. Y. 232, 30 N. Y. St. 653. 1414 Forms of Instructions. [§ 1306 for the erection of the building described in the declaration, and that the contract provided that the plaintiff should erect the building in accordance with the plans and specifications of the architect in a good and workman-like manner to the satisfaction < and under the direction of the architect, to be testified by a certificate under the hands of the architect, and if the jury believe from the evidence that before any payments were to be made to plaintiff by defendant, plaintiff should obtain a certificate from the architect, then the jury are instructed that the mere fact that plaintiff completed the contract according to its terms, will not entitle him to recover payment, but that he must produce the architect's certificate of compliance with the terms of the con- tract unless he can show fraud, collusion or bad faith, and that it is not sufficient to excuse the production of the certificate that the architect unreasonably withheld it. 29 § 1307. Conclusiveness — In general. The court instructs the jury that under the terms of the con- tract sued on in this case, the monthly estimates, in order to be valid, must be accompanied by the certificates of the chief en- gineer of the Company approving the same, and declar- ing that the work done and materials furnished, as therein stated, are according to the contract, and that the charges for the same are according to the contract and without such certificate no payment could be demanded by the plaintiffs, and in all ques- tions connected with such estimates, and the amounts payable thereby and thereunder, the decision of the said engineer is final and conclusive on both parties. And the court further instructs the jury, that if they believe from the evidence that the price fixed for the mentioned in the plaintiffs' declaration was fixed in the monthly estimates provided for in said contract, and that said estimates were afterwards approved by the said en- gineer, and his certificates appended thereto, as provided in said contract, then the price so fixed for all the work included in said 29 — Schenke v. Eowell, 7 Daly (N. Y.) 286. § 1308] Building and Construction Contracts. 1415 estimates must be considered by the jury as the correct prices, unless the jury further believe from the evidence that, in approv- ing said estimates and in making his decision in reference thereto, and in giving the certificate approving the same, the said engineer was guilty of intentional fraud, or of such gross mistake as to necessarily imply bad faith on his part. 30 §1308. Same— Fraud. The court instructs the jury that if they believe from the evi- dence that there was no change in the contract sued on, or no construction of it by the parties different from the construction given by the court; and if the jury further believe that the coal bed became of less thickness than feet,, exclusive of the slates and coal not usually mined in run of mine coal in adjoin- ing collieries, in the rectangle r feet wide and feet high, and described in the written contract, for the space of lineal feet, which is equal to cubic yards ; and if the jury further believe that the engineer of the Kailroad Company in his estimates for said work allowed the said A $ per cubic yard, — then these estimates are not in accordance with the terms of the contract sued on, but in making the said estimates the engineer committed a mistake so gross as to amount to a fraud upon the plaintiff, and neither the said monthly or final estimates are binding or conclusive upon the said plaintiff, but he is entitled to $^ — per cubic yard for the aforesaid cubic yards, sub- ject to any proper credits. 31 The court instructs the jury that if they believe from the evi- dence that there was no change in the contract sued on, and no construction of it by the parties different from that placed upon it by the court; and if they further believe that the coal bed became of a less thickness than feet, exclusive of the slates and coal not usually mined in run of coal in adjoining collieries, in the rectangle feet wide and feet high, described in the written contract, for the space of lineal feet, which is equal to cubic yards; and if the jury further believe that 30— Norfolk & W. E. Co., v. Mills, 31— Norfolk & W. R. Co. v. Mills, 91 Va. 613. 91 Va. 613. 1416 Forms of Instructions. [§1308. the engineer of the Railroad Company -knew the said coal vein became of less thickness than feet, as aforesaid, in the rectangle aforesaid, at the time of his making the monthly and final estimates, and the said engineer allowed the said A $ per cubic yard for said material in said estimates, instead of $ per cubic yard, — then these estimates ' are not in ac- cordance with the terms of the contract sued on, and this con- duct on the part of the engineer is a fraud upon the rights of said plaintiff, and neither the said monthly or final estimates are binding and conclusive upon the said plaintiff, but he is en- titled to recover $ per cubic yard for the aforesaid cubic yards, subject to any proper credits. 32 §1309. Refusal. The court instructs the jury that if they believe from the evi- dence that plaintiff entered into a contract with defendant to construct a building for defendant as alleged in the declaration and that by the terms of the contract plaintiff was not to receive payment until the architect should have given a certificate of per- formance, and if the jury believe from the evidence that plaintiff substantially fulfilled his contract, though unintentionally he was guilty of slight defects in the performance and that he has acted in good faith and to the best of his ability in carrying out the contract, and if the jury believe that the architect refused to give the certificate of performance, then the jury are instructed that such refusal was unreasonable, and plaintiff may recover notwithstanding such refusal. 33 The court instructs the jury that if they believe from the evi- dence that plaintiff entered into a contract with the defendant for the construction of the building described in the complaint, payment to be made by the defendant to the complainant upon production of a certificate of performance by the architect and if the jury believe from the evidence that plaintiff applied to the architect for the certificate of performance in accordance with '32— Norfolk & W. E. Co. v. Mills, 648; Demarest v. Haide, 52 N. Y. 91 Va. 613. Super. Ot. (20 Jones & S.) 398. 33— Nolan v. Whitney, 88 N. T. § 1311] Building and Construction Conteacts. 1417 the contract and that the architect refused to give it, not on the ground of non-performance by the plaintiff, but because defend- ant had told the architect not to give the certificates and that if the jury believe from the evidence that plaintiff had fulfilled his agreement, then the jury are instructed that plaintiff can recover notwithstanding the refusal or failure of the architect- to deliver the certificates, if they find that the architect did refuse or fail to give the certificates. 34 V. Abandonment of Work. § 1310. In general. The court instructs the jury that if they believe from the evi- dence that plaintiff willfully abandoned the work sued for in this case leaving the house which he contracted with defendant to build not finished according to the contract, then plaintiff cannot recover in this action. But if a party in good faith proceeds under a special contract, doing what he reasonably sup- poses is required and substantially completes it and the other party accepts the benefit of the work, although the contractor may not have done all that was really his duty or in the exact manner required, still the contractor may maintain an action to recover the value of his labor and materials, but he will not neces- sarily recover the cost of his materials or the ordinary price of the labor. The party for whom the work' is done is entitled to have deducted from the contract price, the difference between the value of the work as done and its value, if it had been done in accordance with the contract. 35 VI. Actions by Contractor. § 1311. Right of action — Effect of parol guaranty. The court instructs the jury that if they believe from the evi- dence that the plaintiff, either himself or through others employed by him, constructed the building in the agreement in the declara- tion mentioned, in accordance with the specifications in said agree- ment set forth, and relying upon the contract in the declaration 34 — Anderson v. Meislahn, 12 Daly 35 — Cunningham v. Washburn, 119 (N. Y.) 149. Mass. 224. 1418 Foems of Instbuctioets. [§ 1311 mentioned, then the jury shall find for the plaintiff the price therefor in said agreement stipulated to be paid by defendant to the plaintiff, although from the evidence the jury may believe that outside parties, by parol agreement, guaranteed that the plaintiff should lose nothing by his construction of said building under said agreement, and actually advanced to the plaintiff the money necessary to pay for the materials and labor employed in the construction of the said building. 36 § 1312. Conditions precedent — Tender of release. The court instructs the jury that if the jury believe that the estimates provided for in the contract were proper, and show the correct amounts due the plaintiffs, then, before the plaintiffs could institute suit to recover the reserved percentage, they were bound to tender to the defendant the release stipulated for in the contract. But if the jury believe that the estimates were not proper because fraudulent, then the tender of such release was not necessary in order to give the plaintiffs the right to sue. 37 §1313. Reconvention. The court instructs the jury as to the claim for damages in defendant's plea in reconvention for the rental value of said building as follows : If you shall believe from the evidence that at' the time the said plaintiff A assumed to carry out the said contract, as hereinbefore explained, within a period of days from the day of , 19 — , the defendant B agreed with the said A to waive any and all claim for damages that he might have had against the said Iron Works for its failure to carry out and complete said contract, then you are instructed that defendant, B, cannot recover anything for the rental value of said building by reason of the fact that the same was not completed within time prescribed in said contract, and, if you so find the facts to be, you will find against the defend- ant B on his plea in reconvention for the rental value of said building, and so state by your verdict in so many words ; on the other hand, if you shall believe from the evidence that at the time 36— Ferguson's Adm'r v. Wills, 88 37— Norfolk & W. R. Co. v. Mills, Va. 136. 91 Va. 613. § 1314] Building and Consteuction Contracts 1419 said A assumed to carry out and perform said contract within said days the said defendant, B, agreed to waive said claim for damages in the event oniy that the said A should carry out and complete said contract within days after the same had been assumed by him, then you will proceed to further consider whether the defendant, B, is entitled to recover any- thing on his claim for the rental value of said building under the following instructions. If you believe from the evidence that at the time the said Iron Works entered into said con- tract of : — , 19 — , it had knowledge of the fact that one C had entered into a contract with the said B for the erection and completion of his said building by the day of , 19 — , then you are instructed that the defendant, B, will be en- titled to recover the reasonable rental value of said building from the time that the Iron "Works should have performed and completed its said contract with the defendant, B, up to the time that the said building was in fact turned over to the said C for completion by him, but you cannot allow the defendant B any amount for the rental value of "feaid building after the time that the said building was turned over to said C for comple- tion by him. But in this connection you are further instructed that if there were any delays caused to the said Iron Works on account of wrong measurements for material to be fur- nished by said iron works or on account of delay in procuring extra material for the said B, if any, on account of any delay on the part of any transportation company, if any, in delivering the material to be used on said contract, then any and all such delays, if any, cannot be chargeable to the plaintiff herein in computing the time for the rental value of said building, for the reason that neither the Iron "Works nor the plaintiff would be chargeable with such, delays, if any. 38 • § 1314. Evidence — Burden of proof — Misrepresentations. The court instructs the jury that under the contract between the plaintiff and the defendant in issue in this case, the defendant 38 — Feigelson v. Brown, — Tex. Civ. App. — , 126 S. W. 17. 1420 Forms of Instructions. [§ 1314 had the absolute right to stop the plaintiff from boring the well at any time he saw fit to do so. And, if the defendant claims that he would have exercised this right and stopped the plain- tiff, but for a representation made to him by the plaintiff, the burden is on the defendant to prove by a preponderance of the evidence to the satisfaction of the jury that such representation was as a matter of fact untrue, and that the defendant relied upon and was misled by such representation. Unless the defend- ant has proven both of these facts by a preponderance of the evidence to the satisfaction of the jury, the jury must find a ver- dict in favor of the plaintiff. 39 §1315. Same — Same — Performance. The court instructs the jury that by the terms of the contract offered in evidence the plaintiffs cannot recover, unless the jury shall find from all the evidence in the case that the constructed by the plaintiffs with their appurtenances and fix- tures as arranged by the plaintiffs were able when employed by defendants in running and driving their* to work up to horse power, with a full head of water and were capable of effecting a saving of per cent, of water over the wheel that was previously in use and that the burden of proof is on the plaintiffs to establish said facts. 40 § 1316. Damages — In general. § 1317. — Maryland. The court instructs the jury that if they find from the evi- dence the facts set forth in plaintiff's first prayer and shall fur- ther find that any portions of said were built by the plaintiffs for the defendant, according to the said original plans and specifications, and said articles of agreement, and that said defendant has not paid for the same, then the plaintiffs are en- titled to recover for such portions at the rates of compensation named in said agreement. 41 39— Geasty v. Lindsay, 107 Va. 428. 41— Annapolis & B. Short Line B. 40 — Conner v. Mount Vernon Co., Co. v. Boss, 68 Md. 310. 25 Md. 55. §' 1319] Building and Construction Contracts. 1421 §1318. —Texas. The court instructs the jury that if you believe that the con- tract sued on has not been complied with by the plaintiff, in substantial accordance with the terms of the same, and that the requirements of the same have not been substantially kept by the plaintiff, then you will consider, under the evidence, what damages, if any, by reason of the failure of plaintiff to comply with its said contract; and in considering this question you are instructed that, if plaintiff failed to furnish and deliver to de- fendant the electric light plant in substantial accordance with the terms, requirements, and conditions of its said contract, and to comply with the terms of same, and that this was without any fault on the part of defendant, then the defendant would be entitled to recover as damages from plaintiff the ' difference, if any, between the value of the electric plant contracted to be com- pleted, if the same had been completed in all respects in substan- tial compliance with the terms of the same, and the amount of the contract price therefor, as agreed on and fixed by said con- tract ; and if you find that said electric light plant has not been completed in accordance with the contract, and that by reason thereof defendant is entitled to recover damages, then the form of your verdict will be : " We, the jury, find that the plaintiff is not entitled to recover of defendant on the contract, and we find damages for defendant against plaintiff in the sum of dollars." 42 § 1319. Same — Deduction for damage to wall of building. The court instructs the jury that no deduction or abatement should be allowed the defendants for any damage to the wall of the factory erected by the plaintiffs for the defendants under the. contracts in suit, if the jury find that such damage occurred to said wall by reason of any excavations made near to said wall for the installation of the railroad switch referred to in the testi- mony in this case. 43 42 — A. J. Anderson Elec. Co. v. Water, Ice & Lighting Co., 23 Tex. Cleburne Water, Ice & Lighting Co. Civ. App. 328. (Tex. Civ. App.), 44 S. W. 929. See 43— Iron Clad Mfg. Co. v. Thomas A. J. Anderson Elec. Co. v. Cleburne B. Stanfield & Son, 112 Md. 360. 1422 Forms op Instructions. [§ 1320. §1320. Same— Extras. § 1321. — Connecticut. The court instructs the jury that if, the plaintiff was ordered by the defendant to do the work, and judging that extras were included in the defendant's orders, notified the defendant that he should require pay for extras, and the defendant made no reply to the notices, but continued to give orders including ex- tras, the rfatural consequences of defendant's conduct would be to influence the plaintiff to expend his money on the extra labor, which he might not have done, had the defendant, upon notice, refused to pay for extra labor; and if defendant's conduct, such as has been above supposed, in fact did induce the plaintiff to believe it, and to make expense which he would not otherwise have done, the defendant is chargeable with an intent to induce the plaintiff to do the extra work, and ought to pay for it. If you find that the defendant had previously ordered part of the work claimed to be extra done, and pending the doing of the work ordered received plaintiff's letter (Exhibit ), and continued, after said notice, to order the rest of the said work done, and that this work was needed by and useful to the defend- ant, and the plaintiff . was, before said notice, expending money in doing this work, and continued, after said notice, so to spend therein, in the belief that the defendant would pay for extra work, and the defendant was taking and continued to take the benefit of said labor, and has ever since held and enjoyed the benefit, it was the duty of the defendant on receiving plaintiff's notice (Exhibit ) to inform him whether it would pay him for such labor as he had furnished or should furnish upon the order of their engineer, and which should prove to be extra, or else, if defendant kept silent, and by its silence led the plaintiff to believe that it would pay for extra work, and so induce the plaintiff to do extra work, it was defendant's duty to pay for such work as should be extra; and the plaintiff had a right to expect that defendant would pay him for such part of the labor § 1323] Building and Constbuction Conteaots. 1423 furnished by him upon the order of A as should prove to be extra, and to recover a reasonable price for the same. 44 § 1322. — Indiana. The court instructs the jury that if they should find from the evidence that the plaintiff [subcontractor] and the defendants [principal contractors] made and entered into the contract which is filed with the complaint marked exhibit , and you should further find that the provisions of such contract marked exhibit and the specifications marked exhibit were not modi- fied or changed by the school trustees- and the said A & Son, then the court instructs you that in order for the plaintiff to recover anything for extra work or extra material, he must show by a preponderance of the evidence that change in writing was ordered and made by the school trustees, in the plans and speci- fications, which required extra work or extra materials, and if you should find that said school trustees did not order or make in writing any change in such specifications, requiring extra work or extra materials, there can be no recovery in this action for any claim for extra work or extra materials, and as to any claim for such extra work or extra materials, except on the score of crooked walls, you should find for the defendants. 45 §1323. —Maryland. The court instructs the jury that if they find from the evi- dence that the defendant submitted or caused to be submitted to the plaintiffs the plan of the to be built at the , as contained in the document which was given in evidence, indorsed " ," and the specifications of the to be built at as contained in said docu- ment, and that the plaintiffs undertook and agreed with the defendant to build said in accordance with the said plans and specifications and upon the terms set forth in the articles of agreement, dated , also in evidence; and shall further find that after the commencement of the work in question, it was found impracticable to build said in 44 — McCaffrey v. Groton & S. St. 45 — Brown v. Langner, -5 Ind. E. Co., 85 Conn. 584. App. 538. 1424 Fobms of Instructions. » [§ 1323 accordance with said plans and specifications and that the de- fendant changed the character of the from a to a and required the plaintiffs to use in the construction of the not called for by the speci- fications, as contained in said plan^ or by said articles of agree- ment, and of a greater length than the called for by said papers, and that the plaintiffs built said for the defendant in accordance with said changes and that the defend- ant accepted said when finished and has not paid for the same; and shall further find that in consequence of said changes, the quantity and character of materials, and the amount of labor required to be furnished and done by the plaintiffs in the construction of said ; — *— was greatly increased and the plaintiffs suffered loss from delays in consequence of said changes, so that the plaintiffs were put to a greater expense in constructing said — ! as finally constructed, than they would have been, if said ■ had been built according to the said original plans and specifications, then the plaintiffs are entitled to recover such sum as the jury may estimate such in- crease of labor and materials and such loss to amount to; in making such estimate the jury will be guided by the price named in said 'original contract, so far as the same may be applicable to the work and materials as done and furnished. 40 § 1324. — Texas. The court instructs the jury that the plaintiff, A, alleges in his petition that he at an additional expense over and above the said contract price as originally made between said Iron Works and said B, at the special instance and request of the said B, furnished to the said B extra material used for extra girders which were not contemplated in the original plans, of the addi- tional value of $ . And, as to this item, you are instructed that if you shall believe from the evidence that such extra ma- terial for said girders was so furnished to the said B, and you shall further believe that the same was not included and con- 46 — Annapolis & B. Short Line E. Co. v. Boss, 68 Md. 310. § 1326] Building and Construction Contracts. 1425 templated by said contract when read in the light of said plans and specifications, in addition to the amount that you shall allow the said plaintiff on the original contract price of said material, you will add the reasonable value of such extra material which was not so contemplated and included in said original contract; but, if you believe from the evidence that such material was in fact contemplated to be used according to the terms, of the orig- inal contract between the said Iron "Works and the said defendant B, when read in the light of the plans and specifi- cations of said building, then you will not allow any additional sum to said contract price for said material. 47 § 1325. — Virginia. The court instructs the jury that under the terms of the con- tract sued on in this case, the could be changed in any manner at any time, if the engineer of the defendant com- pany considered such change necessary or expedient and that in case of any such change, no claim of an increase of price for the on the part of plaintiff on that account would be valid or be required to be considered by the defendant, unless such claim should be made in writing before the work, under the plans as altered, should be commenced. 48 § 1326. Same — Overpayment. The court instructs the jury that the plaintiff sues for a bal- ance he alleges to be due him from the defendant for material and labor furnished by plaintiff in the completion of the build- ing of the defendant. The defendant denies any indebtedness to plaintiff, and avers that instead of there being a balance due the plaintiff for the work and material, as claimed by plaintiff, the plaintiff was overpaid by the defendant, and he asks a return of the money so overpaid. The defendant claims also that said work and materials were also furnished by plaintiff at certain stipulated rates and prices, and that the amount claimed by plain- tiff is in excess of the amount stipulated. Now, the court inT, structs the jury that, if you find from the evidence that the 47 — Feigelson v. Brown, — Tex. 48— Norfolk & W. E. Co. v. Mills, Civ. App. —j 126 S. W. 17. 91 Va. 613. Blashfield Vol. 1—90 1426 Forms op Instructions. [§ 1326 payments made by defendant exceed the amount of $ , then you will find for the defendant the amount so overpaid. So, also, if you believe from the evidence that there was a contract made between the plaintiff and the defendant for the , and in said contract the plaintiff agreed and guaranteed that the cost of the — should not exceed the sum of $ ; then the plaintiff cannot recover for said work and materials more than the $ , 49 VII. Actions by Owner. § 1327. Damages— In general. § 1328. — Illinois. The court instructs the jury that the measure of the damages is the difference between the value of the building as constructed and the value of the building as it would have been constructed, if it had been constructed according to the plans and specifica- tions except in so far as any of the provisions of the plans and specifications may have been waived by the plaintiffs herein, if any such waiver has been shown by the evidence. 50 §1329. —New York. The court instructs the jury that if they believe from the evi- dence that the contract was made as alleged in the declaration by the defendant to build the house described in the declaration for plaintiff and that defendant did not follow the specifications con- tained in the contract but departed therefrom in building the house, then the measure of damages of plaintiff will be the difference in the value between the house as it was in fact fin- ished by the defendant and as it would have been if he had accurately carried out the provisions of the contract and the plaintiff cannot recover such an amount as would be necessary to make the building conform to what the specifications required. 51 49— Maverick v. Maury, 79 Tex. 5]— Morton v. Harrison, 52 N. Y. 435. Super. Ct. (20 Jones & S.) 305. 50— McBride v. Seney, 192 111. App. 18. CHAPTER LXXVII. BUILDING AND LOAN ASSOCIATIONS. § 1330. Actions — Eight of action in general. § 1331. Same — Defenses. § 1332. Same — Issues and proof. § 1330. Actions — Right of action in general. The court instructs the jury that if they believe from the evi- dence that A had no authority to make a loan of money, and further believe from the evidence that the plaintiff had no notice of any statements or promises by A to the Bs, if he made any, that he was lending them money under the guise of a building contract; then you will find for the plaintiff. 1 §1331. Same— Defenses. The court instructs the jury that the defendant in addition to its claim that it was an estimated period instead of a definite limited period sets up the further defense, that if it had undertaken to make a contract of the character that the plaintiff claims, that is a definite, fixed number of payments, that it would have been acting beyond its powers as a corporation under the laws that existed; and that, therefore, such an act on its part would have been void — that such a contract would have been void as being in excess of the powers it possessed to make. The supreme court in considering this case has laid down the principle that where the act that is alleged to be beyond the power of a corporation is not an immoral act, nor expressly forbidden by some law then the court will not allow the corporation to claim that it was ultra vires, or beyond its powers. So the principle of ultra vires can- not enter into this case. 2 The court instructs the jury that defendant 's remaining defense 1 — Texas Building & Loan Ass'n v. & Loan Ass'n of Syracuse, N. Y., 62 Norwood (Tex. Civ. App.), 46 S. W. S. C. 330, aff 'd 189 U. S. 122, 47 L. 404. Ed. 735. 2 — Williamson v. Eastern Building (1427) 1428 Foems of Instructions. [§ 1331 i is that the plaintiff waived the provisions of the contract when he entered into a subsequent contract by which he made a loan with the association. So that by the defendant's contention, if you should conclude that the plaintiff did have a definite con- tract with the defendant by which after the plaintiff had made payments he would be entitled to receive $ , still, if you should also conclude that he entered into the loan contract, the contention of the defendant is that he waived his rights under the original contract and became bound by whatever changes had been made in the by-laws of the association subsequent to the making of the original contract and up to the time of the making of this loan contract. A person may waive the right which he has, especially a right arising out of contract. And so, the plaintiff, even though he had the defendant bound by this original contract which he alleges, had the power and right if he chose to waive the benefits accruing to him or the rights growing in his favor out of the original contract, and so release the defendant from the performance of it. A defendant relying on such a defense is bound to establish the facts necessary to show the truth of the defense by a preponderance of the evidence that the plaintiff did cast aside his rights and benefits which had accrued to him already under the contract and thereby release the defendant from its performance. If the defendant has offered evidence, satisfactory to your mind, of a waiver, it constitutes a good defense to the plaintiff's recovery in this case. The plain- tiff is not bound to show anything with reference to that matter unless in reply to anything which the defendant may show as going to establish the waiver. I charge you that where a man has a valid claim against another, he may afterwards pledge that claim to the other party in any transaction — any subsequent transaction — and yet by that act of pledging npt waive any right which he may have had under the original transaction. The mere act of pledging the shares of stock does not amount to a waiver of any right which the plaintiff had under the original contract. 8 3 — Williamson v. Eastern Building S. C. 390, aff'd 189 U. S. 122, 47 L. & Loan Ass'n of Syracuse, N. Y., 62 Ed. 735. § 1332] Building and Loan Associations. 1429 § 1332. Same — Issues and proof. The court instructs the jury that the plaintiff alleges that he became in due process the owner of certain shares of stock in the defendant building and loan association on condition that he was to pay an admission fee of a certain amount, and then pay installments on his stock for months. He alleges that the defendant building and loan association agreed with him, that upon the payment by him of these install- ments together with the membership fee, it would then repay to him the full amount of $ upon each and every of the said shares of stock. Under that arrangement he took ■ shares of the stock. He alleges that he performed all the condi- tions and terms of the contract on his part, and that the months have elapsed, the payments have been made, and that he is entitled to his $ that is to say, $ for each and every share of stock so held by him. He sets up in the complaint, that some years subsequent to the time of entering into this contract, he borrowed under a distinct and definite agreement with the defendant building and loan association a certain amount of money, and that he pledged as security for the loan which he thus obtained from the defendant, the shares of stock he already held in the association, and that he was bound by the loan to do certain things — that is, to pay the interest and premiums, and that he did pay these charges; and now admits that the defendant is entitled to offset this loan which he procured from it against the amount due on his original con- tract, to wit : the sum of $ ; and only claims that the defend- ant is bound to pay him the balance, after deducting the amount of his loan from the amount of the original contract. The amount of the loan being $ , and deducting that amount from $ , which he claims to be due on his original contract, leaves the sum of $ , which he claims is now due him from the defendant; and for this he brings his suit, together with the interest from the time he alleges it became due and payable and was refused payment. 4 4— Williamson v. Eastern Building S. C. 390, aff'd 189 U. S. 122, 47 L. & Loan Ass'n of Syracuse, N. Y., 62 Ed. 735. 1430 Forms op Insteuctions. [§ 1332 The court instructs the jury that the defendant does not deny that there was a contract between the plaintiff and defendant; does not deny that he is a stockholder or member of the* defend- ant association, but it sets forth a different contract from that which the plaintiff sets forth. It alleges that instead of the period of months and monthly payments being limited as completing the performance of the contract by the plaintiff, that the contract was that he became a member of the defendant building and loan association, subject to all of its by-laws and rules and regulations, its charter and everything else governing the association; and claims further that under that arrangement he was bound to pay not only a definite, limited number of payments, but was bound to pay any addi- tional payment which would be necessary, taken together with the profits on his payments, to mature his stock to the par value of $ for each share. 5 The court instructs the jury that the point at issue between the two parties is whether or not the contract was a definite, limited contract — limited to the payment of install- ments by the plaintiff, and the absolute obligation of the defend- ant arising thereon to pay him $ a share; or whether it was, on the other hand, a contract by which the plaintiff was to keep on paying until by the books of the association or in some other way — whatever way they arrived at such conclusion — until his shares would arrive at the value of $ each. The certificate of stock and the other matters that enter into the contract, as specifically set forth in the certificate, are to be taken in connection with whatever representations the defendant actu- ally made at the time the contract was entered into; and if it did make any representations in addition to those matters which led to the making of a different contract from that expressed by its by-laws and its articles of incorporation, that special con- tract governs rather than the general contract which would result from its by-laws and articles of incorporation in connection with the certificate of stock. It is for you to determine in the first 5 — Williamson v. Eastern Building S. C. 390, aff'd 189 U. S. 122, 47 L. & Loan Ass'n of Syracuse, N. Y., 62 Ed. 735. § 1332] Building and Loan Associations. 1431 instance, whether or not this defendant did induce the plaintiff by literature, by written or printed representations, or by verbal representations in addition to those contained in its certificate •of stock and by-laws and other matters mentioned in the certifi- cate to enter into this contract ; whether it induced him to believe that it was a contract for a limited number of payments, and that upon the completion of those payments it would be a ful- fillment by the plaintiff of his side of the contract, and an absolute obligation on the part of the defendant to pay the amount of $ a share. And if the evidence in the case satisfies you that the defendant did hold out such representations, then those representations are binding on the defendant and fix the terms of the contract. 6 The court instructs the jury that if you believe from the evidence that the plaintiff has established his contract, and it does not appear to be an unreasonable or immoral contract, in which ease the court would not allow him to set it up, he is entitled to recover on it, unless the defendant has shown some- thing that would defeat it; and it only remains for you to determine whether or not he has established his contract. He is bound to prove it by the preponderance of the evidence ; and if he has so established it, then it remains for you to determine what your verdict will be in his favor, unless the defendant may have shown some matter which goes to defeat his right. The plaintiff is suing on a specific, definite claim, which must be the amount which he claims or nothing at all. He claims that his stock is paid-up stock, that he is not suing to recover from the defendant an amount due on stock which was not paid up. v He claims that his stock was fully matured or paid up, and that he is entitled on the terms of the contract to have the full amount due on his contract — less the offset of the loan which you have heard mentioned. So your verdict must be in favor of the plaintiff for the full amount he claims, or else in favor of the defendant. There is no ground for you to give a compromise verdict, to give him 6— Williamson v. Eastern Building S. C. 390, aff'd 189 U. S. 122, 47 L. & Loan Ass'n of Syracuse, N. Y., 62 Ed. 735, 1432 Forms op Instructions. [§ 1332 a few hundred or a greater number of dollars, but you must either 'give the plaintiff the full amount he claims or give a verdict in favor of the defendant. 7 7— Williamson v. Eastern Building S.' C. 390, aff'd 189 U. 8. 122, 47 L. & Loan Ass 'n of Syracuse, N. Y., 62 Ed. 735. CHAPTEE LXXVIII. BURGLARY. I. Nature and Elements. § 1333. In general. 5 1334. — Missouri. i 1335. — North Carolina. i 1336. — Texas. 1 1337. Intent — Necessity of felonious intent. j 1338. —Illinois. i 1339. — New York. i 1340. — Texas. i 1341. Same — Criminal capacity. i 1342. Same — Belief of ownership of property. i 1343. Same — Intent to restore property to owner. i 1344. Same — Necessity of execution. i 1345. Same — Time of intent — At breaking and entering. i 1346. Premises — Character — One end of room partially divided by partition. i 1347. Breaking and entering — In general. i 1348. Same — Necessity for. i 1349. Breaking — What constitutes — Actual fracturing not necessary. i 1350. Same — Same — Entry through open door. i 1351. Same — Same — Entry through open window. i 1352. Same — Same — Unlocking or opening doort $ 1353. — Iowa. j 1354. — Missouri. i 1355. Same — Same — Entering public building by usual inethod. . } 1356. Same- — Same — By employee out of hours of duty. i 1357. Entry — Necessity for. i 1358. , Same — What constitutes — Entry of part of body. II. Degrees and Included Offenses. i 1359. Degrees — Burglary in first degree, j 1360. Included offenses — Larceny. III. Persons Liable. , i 1361. Persons acting in concert, j 1362. Persons aiding and abetting. ) 1363. — Georgia, j 1364. — Texas. (1433) 1434 Foems of Instructions. IV. Defenses. § 1365. Innocent acquisition of property from another. § 1366. Consent of owner. § 1367. Entry by consent of watchman. § 1368. Building inadequately secured against intrusion. § 1369. Entrapment. § 1370. In general. V. Parties Defendant. VI. Issues and Proof. i 1371. Entry. i 1372. Place and time of offense. i 1373. Identity of property stolen. j 1374. — Texas. i 1375. — West Virginia. VII. Evidence. l 1376. Intent — Inference from evidence as a whole. i 1377. Same — Inference from fact of entry and absence of lawful motive. i 1378. Possession of property stolen — Effect. i 1379. — California. j 1380. — Georgia. i 1381. — Illinois. j 1382. — Iowa. \ 1383. Same — Burden of proof of identity of property. ; 1384. Same — Explanation — Burden. i 1385. Same — Effect of explanation. 5 1386. Same — Doubt as to manner of acquisition — Effect. \ 1387. Same — Breaking and larceny concomitant — Effect. i 1388. Same — Burglary and larceny. 1 1389. Other offenses. | 1390. Testimony of accomplices. § 1391. Admissions and confessions. VIII. Verdict. 1 1392. Requisites — Specification of degree. IX. Prosecution for Possession of Burglar's Tools. § 1393. Evidence — What constitutes possession. Cross-Reference. Matters pertaining to law of crime in general, see Criminal Law. § 1336J Burglary. 1435 I. Nature and Elements. § 1333. In general. § 1334. — Missouri. The court instructs the jury that if you believe and find from the evidence that the defendant, at and in the county of and state of , on the night of the day of , , did wilfully and unlawfully break into and enter a certain storehouse, and if the said storehouse was at the time and place aforesaid in the possession of the Company, a corpora- tion organized under the laws of the state of , and if said defendant broke into and entered the said store building, at the time and place aforesaid, with the intent then and there to take, steal, and carry away, and convert to his own use, and deprive the owners of the use thereof, any valuable goods, wares, and merchandise situate, kept and deposited in the said building, then you will find him guilty of bjirglary and assess his punish- ment at imprisonment in the penitentiary for a term not less than years. 1 §1335. —North Carolina. The court instructs the jury that before defendant can be con- victed of burglary, the state must prove (1st) the breaking (2nd) the entering (3rd) that the house broken and entered into was a dwelling house (4th) that the breaking and entering was in the nighttime (5th) that the breaking and entering was with the intent to commit a felony. In all these particulars, there must be proof satisfactory to the minds of the jury, and if the state fails upon any one point, the defendant is entitled to acquittal. 2 § 1336. — Texas. The court instructs the jury that the offense of burglary in the nighttime is constituted by entering a house by force in the nighttime with the intent of committing the crime of theft. 3 1— State v. Sprague, 149 Mo. 409. 3— Phillips v. State (Tex. Cr. 2— State v. Whit, 4 Jones (N. C.) App.) 45 S. W. 709. 349. 1436 Fobms of Instructions. [§ 1337 §1337. Intent — Necessity of felonious intent. §1338. —Illinois. The court instructs that though the jury believe from the evidence that defendant broke into and entered the dwelling house mentioned in the indictment in the nighttime, and that such breaking and entry were unlawful, he is not guilty of burglary, unless at the time of such breaking and entry, he enter- tained an intention to commit a felony in such dwelling house. 4 §1339. —New York. The court instructs that the felonious intent to commit a crime within a building is a separate element of the offense and in order to convict of a burglary there must be proof of some fact or circumstance or some act or declaration of the defendant in addition to the proof of a mere breaking and entering from which the jury can find such an intention. 5 § 1340. — Texas. The court instructs the jury that if you believe from the evi- dence that the defendant entered said house with the intention of getting a drink of water, or if you believe from the evidence that the doors to said house were open when he entered said house, if he did enter the same, or if you believe from the evidence that at the time the defendant entered said house, if' he did enter it, he did not have the specified intent to commit the crime of theft, or, if you have a reasonable doubt thereof, then ybu will acquit the defendant and return a verdict of not guilty. 6 § 1341. Same — Criminal capacity. The court instructs the jury that if you believe from the evi- dence beyond a reasonable doubt that the ■ defendants did, in county, — , on or about the day of , , by force "or breaking at night, or by breaking in daytime, enter a house occupied by A, with the intent fraudulently to take corporeal personal property situated in said house and belonging 4— Price v. People, 109 111. 109. 6— Oyerstreet v. State, — Tex. Cr.' 5— People v. Marks, 4 Park Cr. (N. App. — , 150 S. W. 899. Y.) 153. § 1342] Burglary. 1437 to said A, from his (A's) possession, without his consent, with intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of themselves, the defendants, and that defendants, at the time of the commission of such act, had discretion sufficient to understand the nature and illegality of such act, then you will find the defendants guilty as charged in the indictment. Otherwise, if you do not find each and all said facts to be so established, you will acquit the defendants. 7 § 1342. Same — Belief of ownership of property. The court instructs the jury that, in order to obtain at your hands a verdict .of guilty, the state must establish by competent evidence to your satisfaction beyond a, reasonable doubt every essential element of the crime of burglary. One of the essential elements of the crime of burglary, as charged in this indictment, is that, after breaking by force the car described in the indict- ment, under circumstances such as would constitute a burglarious breaking under the instructions already given you, the defend- ant entered into such car with intent to steal the coal therein contained. This intent to steal thus required to be established by the, state to your satisfaction beyond a reasonable doubt on the part of the defendant at the time of breaking and entering the car must have been the intent on the part of the defendant to take, steal, and carry away the coal in said car contained, without the consent of the owner, and with the intent to deprive him thereof ; such taking, stealing, and carrying away to be accomplished by fraud and stealth. If, therefore, the defendant's intent at the time of entering said car, or at the time of forcibly breaking the same, if you find he did so forcibly break the car under the instructions already given you, was not to steal the coal therein contained, but that such entry was made under the belief that he had a right to take the coal, or if you have a reasonable doubt that it was his intent to steal the coal, then your verdict must be not guilty. 8 7— Kagsdale v. State, 61 Tex. Cr. 8— State v. Tough, 12 N. D. 425. App. 145. Burglary by minors. 1438 Foems op Instetjctions. [§ 1343 § 1343. Same— Intent to restore property to owner. The court instructs the jury that if the door was open when defendant entered the house, he would not be guilty, and in that event you will acquit him. And you are further instructed that, if defendant picked up the property described and testified to, and did not enter the house, whether opened or closed, for the purpose of theft, but to return the property to the house, he would not be guilty of burglary. 9 § 1344. Same — Necessity of execution. The court instructs the jury that to constitute the crime of burglary, it is necessary that the breaking and entering should be with the intent to commit a felony within the building, but it is not necessary that such intent should be carried out, and if the jury are convinced by the evidence that defendant did break and enter into the dwelling house mentioned in the indictment, and that he then and there entertained an intent to commit a felony therein, the jury should convict, though as a matter of fact, no crime of any kind was actually committed by defendant within such dwelling. 10 § 1345. Same — Time of intent — At breaking and entering. The court instructs that in order to constitute burglary, both the breaking and the entering must have been made with the intention to commit a crime, and though the jury believe that defendant unlawfully broke and entered a dwelling house in the nighttime, and that at the same time during said breaking and entering, he entertained a design to commit a felony within such dwelling house, or even if he actually did commit such felony, the offense is not burglary, if such design was not formed until after he had broken into and entered the house or if he commit- ted the breaking without any such design, and thereafter with such design entered through the breach which he had previously made. 11 9— Fields v. State (Tex. Cr. App.), 10— Harvick v. State, 49 Ark. 514. 74 S. W. 309. 11— State v. Moore, 12 N. H. 42. §1348] Bukglary. f 1439 § 1346. Premises — Character— One end of room partially divided by partition. The court instructs the jury that if such room has a door at each end of it by which it may be entered, but there is an obstruction across the room such as hay or other substance of such height and reaching so near the roof as to make it neces- sary to climb or crawl oyer it in order to pass from one of the rooms to the other, then each end of such room is in law a sep- arate "house" within the meaning of the law, and the entry into such room by breaking or prizing open the door which gave im- mediate entrance thereto would, without the consent of the per- son having the occupancy of same, and with intent to commit theft of property therein, be burglary. 12 § 1347. Breaking and entering — In general. The court instructs the jury that if they believe from the evi- dence that the. warehouse , of A was a room of the same building in which the warehouse of B was situate, and that said rooms were separated by a board partition, and if you further believe that the outer doors ofsaid building were closed and locked, and if you further believe that the defendants entered said building by means of opening either outside door of said building, with the intent to take, steal, and carry away "any of the goods, wares, and merchandise in said building stored, such entrance would constitute burglary, whether it was directly in or to that part occupied by A, or whether the entrance was first made through the part occupied by B. 13 # § 1348. Same — Necessity for. The court instructs the jury that even if the*y should believe from the evidence, beyond a reasonable doubt, that the defend- ants feloniously took and carried away the property described in the indictment, and that such property was the property of the — Company, such facts alone could not authorize a conviction under the first count of the indictment. In order to 12— Kinney v. State, — Tex. Cr. 13— State v. Peebles, 1-78 Mo. 475. App. — , 148 S. W. 783. 1440 Fobms of Instructions. [ § 1348 constitute the offense of burglary, as defined in that count, there must be the wilful, malicious and forcible breaking and entering the car with intent to steal, as defined in the instructions on the part of the people. 14 § 1349. Breaking — What constitutes— Actual fracturing not nec- essary. The court instructs the jury that when it is said that a break- ing of a dwelling house is necessary to constitute burglary, the word "breaking" is used in a technical rather than a literal sense and it is not necessary that any part of the dwelling house be actually fractured to constitute a breaking, but the removal or putting aside of some part of the house which is relied upon as security against intrusion, as by the opening of a closed door which is not locked or by the removal of a netting from an open window, is sufficient. 15 § 1350. Same — Same — Entry through open door. The court instructs the jury that even if from the testimony you should find that defendant took the property as charged in the indictment, and you further find that said property was taken without and against the consent of , yet if you find and believe from the testimony that the door of the granary was open, and defendant made the entry through the open door, or if you have a reasonable doubt as to whether the door was open and the entry was made, then in any event, you should acquit defendant. 1 " § 1351. Same — Same — Entry through open window. The court instructs the jury that to constitute burglary, there must be an entry effected by means of a breaking of the dwell- ing house itself, and an unlawful entry through an open door or window, does not constitute burglary. 17 ' 14— Lyons v. People, 68 111. 271. 16— Duke v. State, 42 Tex. Cr. 15 — Com. v. Stevenson, 8 Pick. App. 3. (Mass.) 354; Dennis v. People, 27 17— McGrath v. State, 25 Neb 780 Mich. 151. § 1356] BuEGLARY. 1441 § 1352. Same — Same — Unlocking or opening door. §1353. —Iowa. The court instructs the jury that where the outer door of a building was open and a screen door was closed, but not fastened, the pushing open of such screen door, whereby entry into the house was effected, is a sufficient breaking to constitute the entry a burglarious one, if it was made with the intention re- quired by law. 18 §1354. —Missouri. The jury are instructed that the mere unlocking or opening of a door is a breaking, within the meaning of the statute. 19 § 1355. Same— Same— Entering public building by usual method. The court instructs that if the defendant had a right to enter the building, as where he was one of the occupants thereof, or where the building was one open to the general use of the pub- lie, it is not a burglarious breaking for him to enter such build- ing in a usual and ordinary manner, though the entry was made with an intention then entertained to commit a crime in such building, and not for any legitimate purpose. 20 § 1356. Same — Same — By employee out of hours of duty. The court instructs that though defendant was employed dur- ing the daytime, at the building, with the entry of which he is charged, and had during the day in the course of his employ- ment, the full right to enter there, if he had during the night* time no duties about the building, and was not called upon or authorized in the course of his employment to enter in the night- time, his entry during the nighttime with the intent to commit a crime would be a burglarious entry, though it was effected by means of a key intrusted to him in the course of his employment. 21 18 — State v. Conners, 95 Iowa 485. 21 — Lowder v. State, 67 Ala. 39. 19— State v. Tutt, 63 Mo. 595. 20— State v. Moore, 12 N. H. 42; Clark v. Com., 25 Gratt. (Va.) 908. Blashfield Vol. 1—91 1442 Forms of Instructions. [§ 1357 § 1357. Entry— Necessity for. The court instructs that to constitute . the crime of burglary, there must be not only a breaking, but an actual entry into the building. 22 § 1358. Same — What constitutes — Entry of part of body. The court instructs that to constitute an entry itis not neces- sary that the defendant should have brought his entire body within the building, but if any part of his body, even a finger, be brought within the interior of the building, it is sufficient to satisfy the requirements of the law. 23 II. Degrees and Included Offenses. § 1359. Degrees — Burglary in first degree. The court instructs the jury that if the defendant entered the building in question in the nighttime — that is, between sunset of one day and sunrise of another day — with the intent to commit larceny, the jury will find him guilty of burglary in the first degree. 24 The court instructs the jury that if they are satisfied from the evidence herein beyond a reasonable doubt that the defendant committed the crime charged in the information herein, in the manner and form therein charged, and that he entered the said house and building with the felonious intent as charged, in the nighttime, during the period between sunset and sunrise, then your verdict should be burglary of the first degree. 23 § 1360. Included offenses — Larceny. The court instructs the jury that under an information for burglary, the accused may be found guilty of larceny; and if, in this case the jury are not satisfied from the evidence, beyond a reasonable doubt, that the defendant committed the burglary as charged in the information, still, if the jury believe from the 22— State v. McCall, 4 Ala. 643, 39 25— People v. Higgins, 9 Cal. App. Am. Dec. 314. 267, 98 Pac. 683. 23 — Cora. v. Glover, 111 Mass. 395. 24 — People v. Perry, 144 Cal. 748, 78 Pac. 284. § 1364] Burglary. 1443 evidence, beyond a reasonable doubt, that the defendant did steal the goods described in the information from the possession of the said , then the jury may, under this information, find the defendant guilty of larceny. 20 III. Persons Liable. § 1361. Persons acting in concert. The court instructs the jury that where two or more defend- ants are charged jointly with the commission of a crime, it is not necessary that it be shown that both of the defendants, or either one of them, when tried alone, actually broke and entered the building or took the property. It is sufficient if it be shown that the joint defendants were acting together for that purpose, and if either one of them, while so acting together for that purpose, actually broke and entered the building with the intention of stealing therein, then all of the said defendants would be guilty of the crime, and either one of them may be prosecuted alone therefor. 27 § 1362. Persons aiding and abetting 1 . § 1363. — Georgia. The court instructs the jury that the accused might be con- victed if it appeared either that he actually broke and entered the place of business with intent to steal, or that he was present aiding and abetting some one else in the breaking and entering with like intent. 28 §1364. —Texas. The court instructs the jury that if you should believe from the evidence that A's house was burglarized at the time and place and in the manner alleged in the indictment, and if you should fur- ther believe that B acted as a principal in committing such burg- lary, if any was committed, then I instruct you that you cannot convict defendant, unless you further believe, beyond a reason- i 26 — Ferguson v. State, 52 Neb. 432, 28 — August v. State, 11 Ga. App. 66 Am. St. Rep. 512. 798. 27— State v. Tucker, 36 Ore. 291, 51 L. R. A. 246, 61 Pac. 894. 1444 Fokms of Instructions. [§ 1364 able doubt, that defendant was present and knew the unlawful intent of B, and aided, encouraged, and advised him or agreed with him to commit such burglary. 29 IV. Defenses. §1365. Innocent acquisition of property from another. The court instructs the jury that if the defendant was not present when and where the house was broken and the property was taken, if you find it was so broken, but he got the same from some other person, he would not be guilty, and if you so find, or if you have a reasonable doubt thereof, find him not guilty. 30 § 1366. Consent of owner. The court instructs the jury that mere knowledge by the owner that the building was to be burglarized, without taking steps to prevent the same, would not be a consent to the commis- sion of the offense, but that if the building was burglarized by the procurement and consent of the owner the defendant would not be guilty. 31 § 1367. Entry by consent of watchman. The court instructs the jury that if defendant was admitted to the house by the watchmanj or any other person in authority, and he by reason of the permission and consent of said watchman entered said house, he would not be guilty as charged; and if you so find, or if you have a reasonable doubt thereof, find the defendant not guilty. 32 § 1368. Building inadequately secured against intrusion. The court instructs that if the jury believe from the evidence that defendant entered the building mentioned in the indictment by breaking into the same, as breaking has been defined to you by the court, the fact that the owner or his servants might by the use of reasonable care have so secured the building with its fastenings that no such breaking or entry would have been pos- ' sible, and that defendant's entry was made possible only by the 29— Glenn v. State (Tex. Cr. App.), 31— State v. Currie, 13 N. D. 655, 76 S. W. 757. 69 L. B. A. 405, 112 Am. St. Eep. 687! 30— Scott v. State, 53 Tex. Cr. App. 32— Shelton v. State, 52 Tex. Cr 332. App. 611. ' § 1371] Bueglary. 1445 carelessness of the owner in failing to fasten his doors, is no defense. 33 §1369. Entrapment. The court instructs the jury, for the state, that if they believe from the evidence in this case beyond every reasonable doubt that the defendants, either alone or in conjunction with A, broke and entered B's, and the defendants, upon the turning on of the light, were in the act of wilfully taking, stealing, and car- rying away the goods mentioned in the testimony, they are guilty as charged, regardless of who actually broke open the store, and regardless of the fact that B had agreed to pay A for assisting in the detection and apprehension of the defendants. 34 V. Parties Defendant. § 1370. In general. The court instructs the jury that if you find from the evi- dence that there were others connected with or participated in the burglary jointly with the defendant, then you would be war- ranted in finding the defendant guilty. The evidence must satisfy you that the defendant is guilty individually or in conjunc- tion With others, and that there is no other reasonable hypoth- esis that any other person or persons committed the crime. 33 VI. Issues and Pkoof. § 1371. Entry. The court instructs the jury that if one having the right to do so goes into a building, that would not be breaking and entering, no matter what his object was in going into the building. One's right to enter a building may be general or limited. If general, then, he may go into the building at any time or for any purpose and the entry would not be wrongful ; but if the right is limited, then an entry would be wrongful unless made for a purpose for which he had been given the right. It will be your duty to determine from the evidence in this case whether the right which the defendant had in going into the building was general or 33— Lyons v. People, 68 111. 271. 35— Johnson v. State, 53 Neb. 103. 34— Dees v. State, 89 Miss. 754. 1446 Foems of Instructions. [§ 1371 limited. If you find that the defendant's right to enter was general, that is, not restricted to purposes of his employment, then he could not be found guilty of burglary, no matter what his object may have been in going into the building. In order to prove the defendant guilty as charged in the information, it will be necessary for the state to show that the entry was wrong- ful by the evidence, and beyond a reasonable doubt, and to show that it was. wrongful the state must show that the defendant's right to enter the building was not a general and unrestricted right, but one that was limited ; and they must further show that the defendant entered the store on — , for some purpose other than that for which he had a right to enter. 36 §1372. Place and time of offense. The court instructs the jury that you must find from the evi- dence, beyond a reasonable doubt, that the offense was com- mitted in county, , within years prior to the filing of the information. 37 § 1373. Identity of property stolen. §1374. —Texas. The court instructs the jury that if there was a reasonable doubt whether the property charged to have been stolen, and that said to have been found in the house where the defendant lived, was the property of A, they should acquit the defendant, or if they had a reasonable doubt whether he got the property from B or from anybody else, other than the A residence, then they should acquit. 38 § 1375. —West Virginia. The court instructs the jury that one of the essential questions involved in this case is the identity of the wool alleged in the indictment to have been stolen ; and, before the jury can convict the prisoner, the identity of the wool must be proved beyond all reasonable doubt. 39 36— State v. Corcoran, 82 Wash. 44, 39— State v. Belknap, 39 W. Va. 143 Pac. 453. 427. 37— Presley v. State, 63 Pla. 37. 38— Hines v. State (Tex. Cr. App.), 42 S. W. 299. § 1380] Bueglary. 1447 VII. Evidence. §1376. Intent — Inference from evidence as a whole. The intent with which an act is committed being but a mental state of the party accused, direct proof of it is not required, but it is generally derived from and established by the attendant facts and circumstances as shown by the evidence ; so in this case the intent with which defendant entered the dwelling house of G if you find that he did enter it, must be determined by you from all the evidence in the case. 40 § 1377. Same — Inference from fact of entry and absence of lawful motive. The court instructs that though the intent to commit a felony within a dwelling house entered is an essential of the offense, existence of such intention may be and usually must be inferred from the circumstances and from the conduct of the person making the entry. The commission of an offense is strong but not conclusive evidence that the entry was for that purpose, and on the other hand an intention to commit an offense may be inferred from the circumstances of the entry and from the absence of other motives therefor, though no felony was in fact com- mitted. 41 §1378. Possession of property stolen — Effect. § 1379. — California. The court instructs the jury that they might consider as a cir- cumstance, if unexplained, tending to prove guilt, the possession of the stolen property by the defendant recently after the alleged commission of the offense, if you find any such property to have been in his possession. 42 §1380. —Georgia. The court instructs the jury that if it be shown by the evi- dence in this case, beyond a reasonable doubt that some one 40— State v. Maxwell, 42 Iowa 210. 42— People v. O'Donnell, 16 Cal. 41— Steadman v. State, 81 Ga. 736; App. '716, 117 Pac. 933. Com. v. Hope, 22 Pick. (Mass.) 1; State v. Boon, 13 Ired. (N. C.) 244, 57 Am. Dec. 555. 1448 Foems op Instbuctions. [§ 1380 did break and enter the pressing-club house of , in this county, and about the time charged in this bill of indictment, and it was his place of business, and you believe that there were valuable goods contained in that house at the time, and that this breaking and entering was done with intent to steal, or if, after breaking and entering, the parties did steal therefrom goods of the value as here charged and as here described, and if it be shown that recently thereafter this defendant was found in pos- session of those goods, or a portion thereof, so stolen from the house, if there were any stolen, then, that would be a circum- stance from which you would be authorized to find him guilty of the offense of burglary, unless he made an explanation of his possession of those goods consistent with his innocence in your opinion of all of which you are to be the judges. 43 §1381. —Illinois. The court instructs the jury that possession of stolen property recently after a larceny has been committed is prima facie evi- dence that the party in whose possession the same is found com- mitted the larceny, and if a burglary was committed at the same time and in connection with the larceny such possession is also prima facie evidence that the party in possession committed the burglary, and that such possession, if unexplained, would war- rant a conviction. 44 §1382. —Iowa. The court instructs the jury that if you find from the evidence, beyond a reasonable doubt, that on or about the of , , a building belonging to or in the possession or occupancy of A, and situated in county, , was broken into and entered, and that personal property was stolen therefrom, and you further find that within a few hours thereafter the property stolen was in the possession of the defend- ants, you will, in such ease, be warranted in concluding and finding that such property was stolen by the defendants from said building by breaking and entering the sanfe, unless the 43— McElroy v. State, 125 Ga. 37. 44_p eop i e v _ Everett, 242 111. 628. § 1384] Bueglaky. 1449 facts and circumstances disclosed or the evidence introduced by the state or the defendants, raises in your mind a reasonable doubt as to whether the defendants did not come honestly into the possession of such property. If such reasonable doubt has been raised in your minds by the testimony and Jacts and cir- cumstances introduced and appearing in the case, then you should not act upon said presumption in convicting the defendants, and should not convict the defendants, unless their guilt has otherwise been proven, as you are directed it must be. 45 § 1383. Same — Burden of proof of identity of property. The court instructs the jury that if parties are found in pos- session of goods recently stolen by breaking into a building, and which have been stolen by breaking into a building, it causes a presumption that such parties have stolen such goods by break- ing into a building. This presumption may be rebutted by the defendant's explaining such possession. The burden is on the state to prove, and it must prove, that such goods were stolen from a building, before such presumption exists. If you find from the evidence beyond a reasonable doubt that in the month of , , a building belonging to , and situated in . county, was broken into, and that property was stolen therefrom, and you further find that within a few hours thereafter the property so stolen was found in the possession of the defendant, you will, in such a case, be warranted in concluding that the property was stolen by defendant from said building by breaking and entering the same, unless the facts and circumstances disclosed by the evidence raise in your minds a reasonable doubt as to whether he did not come honestly into such possession. 46 § 1384. Same — Explanation — Burden. The court instructs the jury that the exclusive and unex- plained possession of stolen property recently after a burglary, in -the commission of which a theft was perpetrated, may raise 45— State v. Ryan, 113 Iowa 536. 46 — State v. LaGrange, 94 Iowa 60. See State v. Rivers, 68 Iowa 611. 1450 Fokms of Jnsteuctions. [§ 1384 a presumption of fact that the party in possession is the burglar, where the burglary has been established beyond a reasonable doubt ; and the burden would be upon the person in whose recent possession the goods, if stolen, were found, to explain such pos- session. It is a presumption arising out of fact, and is therefore a matter for the jury ; what would be recent possession is a mat- ter for the jury, as is the satisfactoriness of the explanation. The presumption being one of fact, before it arises, the state must have established the facts from which the inference is drawn beyond a reasonable doubt; and whilst the burden is upon the defendant, if such facts have been established beyond a reason- able doubt, to explain the possession to the jury, such explanation may be drawn from any evidence in the case which demonstrates it, or from the statement of the defendant, if such statement satisfies the jury upon that point. 47 § 1385. Same — Effect of explanation. The court instructs the jury that the mere fact of the defend- ant having in his possession and disposing of the property alleged to have been stolen ; that is, if you are satisfied beyond a reason- able doubt that he had in his possession the property alleged to have been stolen, and attempted to dispose of it — I say that those facts are only circumstances tending to show guilt, but they are not of themselves sufficient to prove that he committed the burglary. And if the defendant has explained satisfactorily how he came into possession of the alleged stolen property, and from such explanation you believe that he did not participate in the burglary, and there is no other evidence connecting him with the crime, then you will return a verdict of not guilty. 48 § 1386. Same— Doubt as to manner of acquisition — Effect. The court instructs the jury that if you find from the evidence, beyond a reasonable doubt, that on or about the ■ of , , a building belonging to or in the possession or occupancy of , and situated in county, . , was broken into and entered, and that personal 47— August v. .State, 11 Ga. App. 48— People v. Lang, 142 Cal. 482, 798. 76 Pac. 232. § 1388] Bukglaey. 1451 property was stolen therefrom, and you further find that within a few hours thereafter the property so stolen was in the posses- sion of the defendants, you will, in such case, be warranted in concluding and finding that such property was stolen by the de- fendants from said building by breaking and entering the same, unless the facts and circumstances disclosed, or the evidence introduced by the state oi» the defendants, raises in your mind a reasonable doubt as to whether the defendants did not come hon- estly into the possession of such property. If such reasonable doubt has been raised in your minds by the testimony and facts and circumstances introduced and appearing in the ease, then you should not act upon such presumption in convicting the de- fendants, and should not convict the defendants, unless >their guilt has otherwise been proven, as you are directed it must be.* 9 § 1387. Same — Breaking and larceny concomitant — Effect. ' The court instructs the jury that possession of goods recently stolen does not in itself create presumption or amount to prima facie proof that the possessor is guilty of breaking and enter- ing the building in which the goods were kept; but if other evidence in the case shows beyond a reasonable doubt that the building was broken and entered by some one, that the theft of the goods was accomplished at the time and by means of the breaking and entering, proof of possession unexplained, or in the absence of circumstances raising a reasonable doubt as to whether the possession of the goods had been acquired other- wise than by the crime charged, is sufficient to warrant a con 7 viction. 30 § 1388. Same — Burglary and larceny. The court instructs the jury that the recent possession of stolen property raises the presumption that the person in posses- sion is guilty, and throws upon him the burden of rebutting this presumption, and explaining his possession in one of the modes r 49— State v. Eyan, 133 Iowa 536. 50— State v. Donavan, 125 Iowa 2fl9. 1452 Foems of Instbuctions. [§ 1388 hereafter declared; otherwise, this presumption becomes conclu- sive. And in this case, if you believe from the evidence that the store of A, within the time and at the place specified, was entered under such circumstances as constituted burglary, as before de- fined; that certain of A's goods were then stolen and carried away therefrom; and that recently thereafter (and, determin- ing whether the time was recent, yoji will have regard to the nature, character, and situation of the goods) that the goods, or any part thereof, were found in the possession of the defend- ant, — the law presumes him guilty of both the burglary and the larceny, and casts upon him the burden of accounting for such possession to the satisfaction of the jury, that he was not the guilty party, or by the evidence of the attending circumstances, or by evidence of the, character and habits of life of the defend- ant, or by evidence which satisfactorily explains such possession on one or the other of these modes, you should find him guilty of the burglary charged, and may also, in addition thereto, find him guilty of the larceny, if the goods found in his possession were any of those described in the indictment. . . . You are also instructed that, in determining the guilt or innocence of the defendant, you should take into consideration all of the facts and circumstances detailed in the evidence in reference to his possession of the said goods, and also all the other facts and cir- cumstances shown in evidence, and if, from all the evidence, you believe him guilty beyond a reasonable doubt, as afterwards explained, you should so find. . . . Though you may believe from the evidence that the defendant was found in the recent possession of stolen goods, after the time of the alleged burglary and larceny, tKe law does not from that fact alone presume him conclusively guilty. It only raises a presumption of guilt, which becomes conclusive if unexplained by the defendant by evidence showing that he was not the guilty party, or by all the attending circumstances accompanying his possession, or by evidence of his good character and habits of life, or by any other facts or circumstances which satisfactorily explain his possession, or show he could not be the guilty party. And in this case, if you believe, from the evidence, A's store was entered, and certain goods stolen § 1389] Bueglaby. 1453 and carried away, and that certain of these goods were recently thereafter found in the possession of the defendant, yet, if you believe either one of the following facts has been shown by the evidence, you will find the defendant not guilty, notwithstand- ing such recent possession of the stolen property by him : First. That, at the time of the commission of the burglary and lar- ceny (if you believe it was committed by some one), he was not present, either -assisting, aiding, or abetting, but that he was elsewhere; that is, if he has established what is termed in law an "alibi." Second. If you believe, from all of the evidence in the case of the attending circumstances surrounding and attending his possession,- such possession has been explained. Third. By evidence of the good character and habits of life of the accused, if you believe from the evidence he has established the same. Fourth. Or if the other evidence in the case satisfactorily ex- plains to you such possession. Evidence of good character is no excuse for the commission of crime, if you believe that, notwith- standing such character, the defendant is the guilty party; but, in determining the question of whether or not he is guilty, it is proper for you to consider such evidence. As to the defense of an alibi — that is, that the defendant was elsewhere, and did not participate in the commission of the offense, — you are told it is as legitimate and valid as any other defense, and, in the very- nature of things, is the only possible defense that an innocent person can often make. Nor is the defendant bound to establish this defense beyond a reasonable doubt; but if, from the whole evidence, you have a reasonable doubt of his presence at the commission of the offense, as before explained, you must give him the benefit of that doubt and acquit. 51 §1389. Other offenses. The court instructs the jury that we have permitted to be in- troduced into this case, testimony of other offenses alleged to be committed; they were not admitted for the purpose of proving the offense or offenses in this case which are burglary and lar- ceny, but for the purpose of establishing identity; of showing 51— State v. Bryant, 134 Mo. 246. 1454 Fobms of Instructions. [§ 1389 that the act charged was intentional and willful, and not acci- dental; of proving motive; of showing guilty knowledge and purpose and to rebut any inference of mistake. 52 § 1390. Testimony of accomplices. The. court instructs the jury that a conviction cannot be had upon the testimony of an accomplice, even though fully believed to be true, and fully proving guilt, unless corroborated by other evidence tending to connect the defendant with the offense com- mitted, and the corroboration is not sufficient, if it merely shows the commission of the offense. An accomplice, as the word is here used, means any one connected with the crime committed, either as principal offender, as an accomplice, as an accessory, or other- wise. It includes all persons who are connected with the crime by unlawful act or omission on their part, transpiring either before, at the time, or after the commission of the offense, and whether or not he was present and participated in the commis- sion of the qrime. If the offense was committed, A was an ac- complice, and, if B knew the goods left at her house had been stolen and concealed the same, then she was an accomplice, and in such case her testimony cannot be received as in any wise cor- roborating that of A, but you will wholly disregard her testi- mony. If you find that she was not an accomplice, you will take her evidence for what you may deem it worth. If the testi- mony of A is not corroborated by other evidence tending to show that defendant was at the store and agreed to the entry therein, you must acquit. 53 § 1391. Admissions and confessions. The court instructs the jury for the defendant that a convic- tion of said defendant will not be warranted alone on the con- fession or admission of the defendant of having stolen the gun. It devolves on the state to show by satisfactory testimony be- yond every reasonable doubt to the jury, not only that a crime of burglary was committed, but also the state must connect the 52— -Com. v. Griffin, 42 Pa. Super. 53— Criner v. State, 53 Tex. Cr. Ct. 597. App. 174. §1393] Bueglary. 1455 defendant by sufficient evidence with the commission of the crime. 54 VIII. Verdict. § 1392. Requisites — Specification of degree. The court instructs the jury that although you cannot, under the information, find the defendants, or either of them, guilty of any offense other than burglary, it would be somewhat diffi- cult to furnish you with the complete form of every possible verdict at which, according to your view of the evidence, you may arrive. The court will therefore furnish you mere blank forms. Upon one of such forms you will formulate your ver- dict, and your foreman will sign it. You will be careful to dispose of the whole case, observing that there are two defend- ants, and if you find either or both of them guilty of burglary you will specify whether in the first or second degree. With proper care, you will probably be able to frame a verdict, but, should you need further instruction, you may request the officer in charge of you to return you to the court room for such instruction. 55 IX. Prosecution for Possession op Burglar's Tools. § 1393. Evidence — Whal constitutes possession. The court instructs the jury that the government must show that each one of the defendants had possession of these instru- ments. That doesn't mean that the government must show that each man had his hand on them; it doesn't mean that. It does not mean that each man had them in his own room, the special room that he occupied for that lodging; it doesn't mean that. But if these men were all living here, occupying this apartment in this house that was their home, and the articles were found in the house, in the home where all the men lived, that would be sufficient possession within the meaning of the indictment. 56 54 — Richardson v. State, 80 Miss. 06 — Com. v. Johnson, 199 Mass. 55. 115. 55— People V; Brady (Cal.), 65 Pac. 823. CHAPTER LXXIX. CANCELLATION OF INSTRUMENTS. § 1394. Eight to relief — Fraudulent procurement of possession of deed. § 1395. Conditions precedent— Offer to restore defendant to status quo. § 1396. Relief awarded — Cancellation and recovery of consideration. § 1394. Right to relief— Fraudulent procurement of possession of deed. The court instructs the jury that if they believe from the evi- dence before them that plaintiff, A, executed the deed described in her petition, and that she placed the same in possession of B to be placed with other papers and documents belonging to plain- tiff in the Bank of for safe-keeping, and that at the time she placed said deed in the custody of B she did not intend to surrender control and dominion over said deed, and that defendant C obtained possession of said deed without the knowledge or consent of plaintiff, then they should find a verdict for plaintiff. 1 § 1395. Conditions precedent — Offer to restore defendant to status quo. The court instructs the jury that in order to warrant the plain- tiff to rescind, he must have acted promptly upon the discovery of the misrepresentations, if any, so made, and should thereupon have tendered and offered to reconvey the land back to the defendants, and offered to restore them to the same position they were in before the sale of the land to the plaintiff. If you find that he did not offer to restore the land upon discovering the land was not in the condition as represented, if in fact it was not as represented, or if you shall find that there were misrepre- 1— Gatt v. Shive (Tex. Civ. App.), 82 S. W. 303. (1456) § 13B6] Cancellation of Instruments. 1457 sentations as to its quality and kind, made to plaintiff by A when he sold the land to plaintiff, and upon learning of such misrepre- sentations the plaintiff did not, within; a reasonable time, offer to restore the same and reconvey, then you should find again'st the plaintiff on the question of rescinding the sale, unless you shall find that the defendant refused to do anything with reference to accepting back the land or possession thereof; and in case you so find, under such 7 circumstances, then plaintiff was not required to make such tender. 2 § 1396. Relief awarded — Cancellation and recovery of considera- tion. The court instructs the jury that if you find that plaintiff, under the facts and charge given you, is entitled to a rescis- sion, then you should return a verdict for the plaintiff for a rescission, cancelling all the notes executed by him, and for the cash consideration paid by him, as against A and B, as executrix of the will of C, with per cent, interest per annum from date of such payment. 3 i 2 — Hagelstein v. Blaschke, — Tex. 3— Hagelstein v. BlaschKe, — Tex. Civ. App. — , 149 S. W. 718. Civ. App. — , 149 S. W. 718. Blashfielrt Vol. I— 92 . X